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One Step Forward, Two Steps Back: Freedom of Information Goes Into the Pot

One Step Forward, Two Steps Back: Freedom of Information Goes Into the Pot

The president has vetoed the scandalous amendment to the act on freedom of information, introduced at the end of April. The final version of the amendment was shaped by the closing motion proposed by the Standing Committee on Constitutional Issues. Let’s see what changed after the presidential veto.

The Hungarian Civil Liberties Union, investigative portal, K-Monitor watchdog for public funds and TI Hungary jointly formulated their concerns with regards to the amendment to the law ensuring access to public data. The law voted by the Parliament on April 30 had almost no paragraph that we could agree with.

The most dangerous provision, curtailing even fundamental rights, opened the possibility for data holders to whimsically label data disclosure requests abusive (abusive meaning in this case ensuring access to an “excessive” depth or extent). The only thing public bodies in possess of the data have to do is to claim that satisfying the request would lead to an insight of the extent and depth supervisory authorities have. They could have even been able to reject a data request based on the argumentation that its fulfilment would result in an incommensurate workload for the authorities. Similarly to the listed provisions, it is also far from elegant that the initial version of the law would have made it possible for public decision makers to narrow even further the scope of the act on FOI, by voting other laws at will.

As a follow-up to the presidential veto, also Attila Péterfalvi, president of the Hungarian National Authority for Data Protection and Freedom of Information (NADPFOI) made a move. In his letter to the Standing Committee on Constitutional Issues, he admitted that due to the creation of so-called “specific legal provisions regulating data access, the FOI law’s applicability can be restricted at will”. Unfortunately, though, he agreed to the point that “abusive data requests pertaining to a large amount of public data” can jeopardize the “right to public data access”. This fiasco is somewhat counterbalanced by the fact that Mr. Péterfalvi admits: the vetoed law would have left too big of an elbow room for law enforcers. That is, state bodies handling public data would have been able to freely determine what qualifies as a data request “of excessive extent”. This way, even arbitrary rejection of public data requests would have been possible.

It looks like the Standing Committee on Constitutional Issues has listened more to Mr. Péterfalvi’s words, instead of following those of President János Áder. That is, the text of the amendment still doesn’t prevent arbitrary restriction of public interest data disclosure. According to the new version, what would be forbidden is that citizens come up with requests that demand “overarching, invoice-based”, or “itemized” audit of the “management of a body performing public sector duties”. The devil, nonetheless, lies again in the details – as it is at the discretion of bodies possessing such data to decide what qualifies as overarching, invoice-based or itemized audit.

Nor it is a reason to rejoice that it is the NADPFOI that citizens requesting data can turn their complaints to, in case their request is rejected. The reason is that it is simply unknown whether it is possible to appeal to a court if data holders reject a request. It might be that court appeal is only possible once the citizen has exhausted all administrative remedies. In such cases the authorities, by endlessly delaying the case, can jeopardize the option of the judicial remedy.

The fact that legislators have introduced the term “abusive data request” into public awareness, reveals a complete misunderstanding of what is at the core of the concept of freedom of information. Citizens implement their fundamental right laid down by the Constitution when they control the exercise of public power and the spending of public funds by requesting data. Thus, abuse is not likely to take place on behalf of citizens who request public data. Rather, it will be committed by data handling authorities who will deliberately decide what data to disclose and what to keep for themselves. Unaffected by the presidential veto, curtailment of the right to the access and dissemination of public interest data is still a realistic threat.

This can only be redressed if, instead of modifying it, the proposers withdraw the law. There is no obstacle to do so, as there is no need of this legislation whatsoever. As the amendment passed the final vote unchanged, it is absolutely necessary to initiate a process at the constitutional level, as also the new phrasing of the amendment weakens the right to access public interest data.

As the president sent the law back to the parliament in the first round, now he can only ask for the constitutional review of those new provisions which the parliament inserted in the legislation following the presidential veto. Constitutional review of the entire law can be only requested by Máté Szabó, Hungary’s ombudsman for civil rights.

The single positive element of the amendment is that the provision narrowing the scope of the FOI act was omitted. Thus, if by instance another law grants the right to access or copy information, and this right is curtailed in some respect, it is still possible to initiate court litigation on the basis of the FOI law.

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