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The coming dark age of democratic governance in Hungary
A recent amendment to the law on freedom of information (Act CXII of 2011) all but ensures that the Government operates in complete darkness. The amendment is alarming for many reasons. Most crucially, it casts a wide net in banning public access to any information handled by public bodies that may be controlled by, for example, the State Audit Office, Government Control Office, the Public Prosecutor or the Ombudsman. The amendment passed in an insane two days at a conspicuous time when major NGOs and news portals were about to ask for the bids in a tender for tobacco retail licenses, which reportedly went to party loyalists. With this law corruption turns into business as usual and discussions will be silenced.
The Stinking Tender on Tobacco and the Two-Day Lawmaking
The events of the last week leading up to the adoption of the amendment indicate that a planned data request concerning the public tender on tobacco retail licenses prompted the Government to finally close in on freedom of information. The Government recently decided on the distribution of licenses for the retail sale of tobacco. The details of the tender remain closed to the public as the Government has so far refused to reveal the bids, the findings of the evaluation process and the business plans of the winning bidders. On April 26th several NGOs and news portals prepared to file a data request concerning information on the details of the tender. The next day one of the NGOs publicly announced the intent of submitting the request by April 29th. However, on Sunday, April 27th two MPs of Fidesz introduced an amendment to the law on freedom of information that allows government agencies to refuse data requests, including the one on the tender for tobacco retail licenses. Indeed, various government agencies had been complaining that servicing data requests was an undue burden, therefore the new ground of refusal to justify holding back public interest data is no surprise.
On Monday, April 29th a supermajority in Parliament approved a “special urgent” procedure to debate and adopt the amendment in less than two days. Parliament voted in the procedure rapidly, giving MPs three hours to submit amendments to the bill. Debates on the law took place in the afternoon of April 29th. Party factions had a total of 30 minutes to comment, while independent MPs had 8 minutes altogether to do so. The law was finally adopted Tuesday, April 30th in the morning with no support from opposition parties.
The manner of adoption again raises serious concerns about the transparency and credibility of the legislative process. The amendment involves the most serious limitation on freedom of information enacted since 1992 when the first relevant law was adopted. Despite this the Government circumvented the requirement for public consultation and severely limited debate in Parliament by taking advantage of so-called “special urgent” adoption, an exceptional procedure to legislate to be approved preliminarily with a 2/3rd vote. To have easy recourse to extraordinary legislation exempting from both public consultations and political debate, the incumbent Government first changed the rules on the adoption of the “special” procedure in 2011. As a result, the threshold of 4/5th of Parliament previously required to approve the use of the “special” procedure has been reduced to 2/3rd, equaling to the ratio of seats Fidesz holds in Parliament.
On Monday, April 29th civil society organizations Hungarian Civil Liberties Union (HCLU), Transparency International (TI), K-Monitor and Atlatszo.hu along with news portals Origo.hu, Index.hu, and HVG.hu signed the request for information on the tobacco license tender and submitted it to the Ministry for National Development and the National Tobacco Corporation. On Tuesday, HCLU, TI, K-Monitor and Atlatszo.hu sent an open letter of critique to the leaders of the Fidesz-KDNP factions on the amendment to the law on freedom of information. In a separate letter to the Minster of Justice and Public Administration, the NGOs also made clear that they would quit the government task force on corruption if the amendments to the law were adopted by Parliament. After adoption of the law in Parliament, the NGOs publicly declared that they would no longer participate in the task force.
Minister of Justice and Public Administration Tibor Navracsics responded in an open letter condoning the government’s position on the law. Curiously, Minister Navracsics offered three-page reasoning for the rationale behind the amendment despite the fact that individual MPs had submitted it. In case of bills submitted by individual MPs, there is no requirement to consult the various ministries and agencies. The drafters of the bill also failed to consult the head of the National Data Protection and Freedom of Information Authority before submission to Parliament. It is astonishing that Minister Navracsics did, within hours offer his support and reasoning to a bill his ministry had allegedly nothing to do with. As usual he saw no issue with the fact that freedom of information and judicial oversight in the matter were both severely curtailed by giving much more room to refuse data requests. Even more shocking the President of the National Data Protection and Freedom of Information Authority delivered a frustrating speech in Parliament defending the amendments without giving any legitimate justification or interpretation of the law. Mr. Péterfalvi said that critics should wait as long as the new law is fully put into practice.
The Legal Issues
1. New Limit on Freedom of Information
Most crucially, the new law will limit data requests that pertain to information that may be subject to audit, review or scrutiny by public offices designated in the law. The restriction says that a request to obtain public interest data may not result in as extended and profound access to and processing of data by the requester as supervisory authorities defined in the law may exercise.
This new restriction potentially covers any information handled by public agencies. Government agencies may in the future refuse to answer data requests falling at present within the notion of freedom of information if they judge that complying with the given request would lead to granting access to as much data as only state auditing bodies may possess. Moreover, non-compliance can also be sustained by saying that the resources of the requested agency are insufficient to fulfill such request. The law fails to provide any detail as to how this new ground of non-compliance with public interest data requests is to be interpreted. A major loophole which may lead to arbitrary refusals of data requests. The reasoning of that law also assumes that requesting what the Government might consider an unnecessarily large amount of data is an abuse of one’s fundamental right to access information.
2. New Limits on Judicial Oversight
The amendment also says that the law on freedom of information does not apply to data and information that may be accessed as provided for in different laws. This is a serious limitation of the scope of the law on freedom of information. As a consequence, public interest data requests subject to the criminal procedure law, civil procedure law or rules of procedure of the public administration will no longer be governed by the law on freedom of information. Asking for the judicial review of non-compliance with public interest data requests is only possible if such refused requests fall under the law on freedom of information. Limiting the scope of the law on freedom of information equals to limiting judicial oversight over public entities holding public interest data. This limitation on freedom of information should be based on a legitimate ground, but neither the drafters nor the government offered such justification. The amendment curtails freedom of information, an inherent right of citizens insofar without any urgent need to do so, a reason to suspect that this is unconstitutional.
The amendment includes new provisions on business secrecy, setting out that public expenditures cannot be declared a business secret. This provision is currently included in the Civil Code, however the recently adopted new Civil Code to be entered into on 1st March 2014 will not provide for such an exception. Judicial oversight here pertains mainly to rejections of public interest data requests. The new law says that if a request for information on public expenditures is denied by reason that the requested data is a business secret; the requester may turn to the administrative body supervising the denying agency. However the amendment does not take a clear stance as to whether the requester may or may not seek judicial review of the denial or the administrative review is a precondition of judicial oversight. This evokes uncertainty in regard of the right to turn the court, a fundamental safeguard in the field of access to public interest information.
3. New Restrictions on the Use of Public Interest Data
A confusing but potentially powerful rule in the amendment concerns the new limit on dissemination of public interest data that contains personal information of persons assigned with public duties (MPs, public decision makers, etc.). Up to now, access to such data was governed by the general rules on freedom of information. The law as in place currently requires that certain personal information of public officials be accessible to the general public. It means that neither purpose specification, nor justification of personal or public interest are required when requesting and/or disseminating public data of this kind. However, according to the amendment the use of public interest information of public sector employees has to be justified with respect to the principle that purpose of data management shall be legitimately specified. This creates the possibility to restrict the dissemination of certain personal data of public employees, such as income and revenue data, data contained in asset declarations, etc. Meanwhile the law omits to provide any signpost to orientate those who would like to find out what can justify a legitimate purpose in this sense.
4. Applicability for ongoing cases
As we mentioned above, several data requests have been submitted recently on some scandalous cases of misuse of public powers, including the licensing of tobacco retail. As the amendment applies to public interest data requests and litigations underway, it would be hard not to notice that the Government intends to intervene into these cases. Nonetheless, the harm that the adopted amendments might cause to freedom of information goes way beyond the tobacco tender.