The recent decision of the Constitutional Court once again gave priority to freedom of information. This story began two years ago. Back then, Tamás Bodoky, editor of atlatszo.hu had filed a lawsuit to get access to the report written by the Ministerial Commissioner responsible for the comprehensive financial screening of the Hungarian State Opera House. The Commissioner began investigating in September 2010, steering a team of eight members, all of them paid from public funds. In his report completed in February 2011, he revealed that 1 billion HUF of public funds had been misspent between 2005 and 2010 in the Hungarian State Opera House. Bodoky wished to find out more on this topic than  what was available in the press. But he lost the lawsuit both at first and second instance: according to the courts, the report was merely a preliminary decision-making document, and as such, it wasn’t public. Not even if the Hungarian state was unable to specify which decision the report they tried to hide was preliminary to. This is a particularly tenuous argument, because what kind of decision must be prepared where a billion-HUF embezzlement is revealed? It should be reported once and for all! Atlatszo.hu filed a constitutional complaint, and the Constitutional Court (CC) in its  decision  of 16 July annulled the court decisions approving of state secrecy.

The CC by interpreting the text of the Constitution, came to substantial conclusions in terms of freedom of information. It is worth quoting a few of them!

First of all it stated that pursuant to the Constitution “denying the provision of data of public interest” shall only be “to the extent strictly necessary”. And it also referred to the “National Creed” which states that “true rule by the people can only be achieved where the state serves its citizens and manages its affairs fairly without abuse and bias.” In fact according to the AB, if an official is busy or tired, that cannot be accepted as an excuse. The CC says that “the convenience of authorities and persons carrying out public duties shall not take precedence over fundamental rights”, and that “the right to know and disseminate data of public interest shall not be restricted on the grounds of the extra burden it constitutes for the data management authority.”

The decision of the Constitutional Court goes far beyond the access to the Opera House screening report by the Ministerial Commissioner. The CC’s message was that those rules “that give discretionary powers to the data management authority to refuse access to data of public interest” “themselves violate fundamental rights”.

The CC also stated that any restrictions to the right of access to data of public interest shall be justified in a substantial and uncontested way. Using “a formal reference to the restriction of publicity” is insufficient. That is considered “an unfounded and unnecessary restriction on the right to access and dissemination of data of public interest, under the Constitution”.

The phrases quoted by the Constitutional Court are very important because the Parliament only recently  amended the Freedom of Information Act . This amendment was at first vetoed by the President of the republic (you can read more on that  here  and  here ) and it still has some difficult days ahead, because it is not exactly in line with what the CC said regarding the Opera House (to say the least). The amendment of the Act on Freedom of Information introduced the notion of “abusive data request”. In the language of the law, it sounds as a data request for an “overarching, invoice-based, or itemized audit of the management of a body performing public sector duties”. Specific laws regulate such data requests.

The problem with this solution is twofold. Firstly, data managers, state authorities may consider any request for public data “overarching”, “invoice-based” or “aimed at an itemized audit”, at their own convenience.  Secondly, the government in those “specific laws” gave itself a free hand to narrow the scope of those entitled to have access to the spending of companies and institutions financed by public funds. This way the right to access to data of public interest on the spending of public funds, regulated by the Constitution, would really make no sense. That’s why Transparency International and other NGOs asked the ombudsman, the General Prosecutor and the President of the Curia of Hungary in an open letter to refer to the Constitutional Court, as the amended Act on Freedom of Information violates the Constitution.

So, access to the Ministerial Commissioner’s screening report on the Opera House is closely related to the amendment of the Freedom of Information Act. According to the Constitutional Court, rules prescribing reasons for the discretionary denial are “themselves violating fundamental rights”, and increased workload of state data managers is not enough reason to restrict the access to data of public interest. Let’s have another look at the amended Freedom of Information Act. What could be more discretional than state data managers being free to decide if a public data request is “overarching, invoice-based” or rather “itemized”? When a person or entity requesting data of public interest stirs up the hornet’s nest, or it would simply be too much of a hassle to produce the requested data, the easiest answer is: it would constitute an itemized audit; therefore I refuse to give the information. That is exactly what data managers won’t be able to do after 16 July. And as the amended Freedom of Information Act does not reach that level, it will hardly stand up to the test of constitutionality.

In light of the decision of 16 July we have reason to hope that the AB will judge the amendment to the Freedom of Information Act to be incompatible with the Constitution. In case the necessary motion is submitted to the CC, that is. So, reinforcing our arguments with the arguments of the CC,  once again we ask Máté Szabó ombudsman, Péter Darák, President of the Curia and General Prosecutor Peter Polt to turn to the Constitutional Court.