Poland

[PL] Adoption of the Act Amending the Act on Access to Public Information

IRIS 2012-1:1/36

Małgorzata Pęk

National Broadcasting Council of Poland

On 16 September 2011 the Polish Parliament adopted the Act Amending the Act on Access to Public Information and some other Acts.

The Act provides amendments that are necessary to transpose Directive 2003/98/EC on the re-use of public sector information (see IRIS 2004-1/104). The Act introduces a new right, the right to re-use information of the public sector. Due to this it is possible to use public information or parts of this, regardless of the form in which it was fixed (inter alia paper, electronic, sound, visual or audio-visual form) for both commercial and non-commercial purposes, other than the original aim for which the information was produced. As a general rule, subject to a few exceptions established in the Act, such re-use of public sector information can be made free-of-charge and without restriction.

The Act also provides additional provisions regarding access to information that were proposed by the Senate and introduced at a late stage of parliamentary business. These raised the concerns of journalists and non-governmental organisations advocating freedom of speech. The additional provisions in question restrict the right to public information for the protection of important State economic interests in the field and in time, as providing information that it:

1) would weaken the bargaining ability of the State Treasury in the management of its property or the negotiating power of the Republic of Poland regarding an international agreement or decision-making by the European Council or the Council of the European Union;

2) significantly undermine the protection of property interests of the Republic of Poland or the State Treasury or in proceedings before a court, tribunal or any other adjudicating authority (see Art. 1 para. 1a of the Act on the Access to Public Information).

The President of the Republic of Poland signed the Act but expressed his concern on the proceedings with regard to the aforementioned Senate amendment. The President declared that, within the post control procedure, he would send a motion to the Constitutional Tribunal to examine the observance of the procedure required by law to promulgate the Act (regarding the Senate’s amendment).

Moreover, on 25 October 2011 the National Broadcasting Council of Poland (NBC) adopted a position in regard to the adoption of the Act Amending the Act on Access to Public Information and some other Acts. The NBC expressed concerns that the Act - in regard to the newly introduced restrictions to access to information - uses the broad notion ”important State economic interest”. This notion is imprecise, and gives too much discretion to the institution obliged to give access to public information. Such a possibility may constitute a threat to freedom of speech and the right to information.

Most parts of the Act Amending the Act on Access to Public Information and some other Acts (including the aforementioned provisions) will enter into force on 29 December 2011, the remaining parts will enter into force on 29 September 2012.