Civils say law to classify data of the Paks nuclear power plant expansion as confidential for 30 years is unconstitutional.
To Mr. János Áder
The Office of the President
Dear Mr. President,
On 3 March 2015, the Hungarian Parliament adopted bill T/2250. on the project regarding the capacity maintenance of the Paks Nuclear Power Plant and the amendment of certain related laws. As a result of the proposed summarizing amendment submitted on 27 February 2015, Article 5 of the adopted law seriously restricts access to data of public interest. Article 5 of the adopted law sets out the following:
“In the context of the Implementation Agreements and the Project, the business and technical data included in the contracts signed by the Russian Designated Organisation and its subcontractors under Article 3, paragraph 1 of the Intergovernmental Agreement, and the Hungarian Designated Organisation and its subcontractors under Article 3, paragraph 2 of the Intergovernmental Agreement, as well as said Implementation Agreements, contracts, and business and technical data regarding the preparation and signature of the Intergovernmental Agreement and the data forming the basis of the decisions thereof are not accessible as public information for a period of 30 years from the date of their generation, in line with points b) and h) Article 27 (2) of Act CXII of 2011 on the right of informational self-determination and the freedom of information.
Article VI. (2) of the Fundamental Law of Hungary states: “Everyone shall have the right to the protection of his or her personal data, as well as to access and disseminate data of public interest.” Furthermore, Article 39 (2) sets out: “Every organisation managing public funds shall be obliged to publicly account for its management of public funds. Public funds and national assets shall be managed according to the principles of transparency and the purity of public life. Data relating to public funds and national assets shall be data of public interest.” Article I (3) of the Fundamental Law states that “A fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of such fundamental right.”
The Constitutional Court of Hungary, it its Decision 32 of 1992 (V. 29.) states that “free access to information of public interest provides for the oversight of the legitimacy and efficiency of representative bodies, the executive power and public administration, and stimulates their democratic operation.” In its Decision 34 of 1994 (VI. 24.) the Constitutional Court holds that “the open, transparent and verifiable activities of public organizations, and in general the transparent operation of state organizations and the executive power is a cornerstone of democracy, and a guarantee of the rule of law.” Constitutional Court Decision 12 of 2004 (IV. 7.) states that “in a democratic society, the publicity of data of public interest is the main rule; any restriction on the access to such data shall be regarded as an exception to that. ”
Article 5 of the adopted law, citing national security and the protection of intellectual property rights, restricts access to any business and technical information related to the Paks Nuclear Power Plant expansion project, as well as data related to forming a basis of decisions made for the project. However, Article 5 of the adopted law fails to define the concrete interests regarding national security and the protection of intellectual property rights, based on which it imposes a general restriction on the access to said data of public interests, without any differentiation whatsoever. The grounds of the proposed summarizing amendment forming Article 5 of the adopted law only states that “with the amendment, the bill becomes fully harmonized with the regulations of the Information Act on access to information of public interest.” However, the adopted law and the grounds thereof fail to elaborate on how exactly the decision, generally restricting access to a very wide range of public data for thirty years, serves national security interests and the protection of intellectual property rights.
Thus, Article 5 of the adopted law restricts access to data of public interests more than the extent absolutely necessary, as it renders business and technical information, and decision support data completely inaccessible, regardless of whether such data is related in any way to national security interests or the protection of intellectual property rights. A restriction of fundamental rights greater than absolutely necessary is in violation of Article VI (2) of the Fundamental Law, with regard to Article I (3) of the Fundamental Law.
Moreover, Article 5 of the adopted law renders meaningless the option of judicial review of the refusal to gain access to public data. The controller of such data has no discretion over the disclosure of the data; in line with the regulation of Article 5 of the adopted law, all access to such data is explicitly denied. Thus, the data controller and the law court is denied the opportunity to publish such data in accordance with Article 30 (5) of Act CXII of 2011 on the freedom of information and right for informational self-determination even in the case when the interest in the publicity of such data is obviously greater than national security interests or the protection of intellectual property rights. The above conditions lead to the disproportionate restriction of access to data of public interest, and, with special regard to Decision 2 of 2014 (I. 21.) of the Constitutional Court, are in violation of Article VI (2) of the Fundamental Law.
The disproportionate restriction of the fundamental right of access to public data included in Article VI (2) of the Fundamental Law also renders meaningless the principle of the publicity of public funds provided for in Article 39 (2) of the Fundamental Law.
Besides constitutional issues, the adopted law is contrary to Article 4 (2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC. The above directive permits certain request to be refused on the grounds of national security or the protection of intellectual property, but also states that “The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure.” By contrast, the adopted law explicitly refuses public access to data of public interests, and thus makes it impossible to consider the public interest served by disclosure and the public interest served by refusal before accepting or refusing the request for the data.
With regard to the above, Article 5 of the above law cannot be held constitutional. Therefore we request Mr. President to initiate a review of the constitutionality of Article 5 of the adopted law at the Constitutional Court, based on Article 6 (4) of the Fundamental Law, and with regard to your duty included in Article 9 (1).
Budapest, 3 March 2015.
József Péter Martin
Dr. Máté Szabó