The HCLU requested the disclosure of the minutes of the cabinet meetings, their appendices and the voice recording of one meeting. HCLU’s aim was to test the new legal provisions adopted following the decision of the Constitutional Court and to challenge the practice of classifying all data consistently for 50 years. The Office of the Prime Minister (OPM) handles the records. In their answer to our request, the OPM stated that every record and its appendix are classified for 50 years as state secret. HCLU filed a legal action, as we thought it is impossible that the government discuss nothing else but state secrets during the meetings. During the judicial process, the representative of the OPM referred to the Act LXIII of 1992 on the Protection of Personal Data and Public Access to Data of Public Interest which allows the data controller to withhold data prepared or recorded, on which the decision was made during the process aiming at decision making in the field of the sphere of tasks and powers of the organs.
The Municipal Court of Budapest (which proceeded as court of first instance) declared that documents can not be classified „globally”, only data matching to the list of classifiable and defendable interest can be classified as state secret. The Court obligated the Office of the PM to publish the documents, however, the Court also ruled that document containing data of public interest contains data not accessible by the claimant shall be made unrecognizable. The Court ruled that the voice records are lawfully locked away from public. Regarding the voice records, the publication depends on the decision of the Prime Minister, and there are no objective control elements (for instance time limit) limiting his power to withhold such information.
HCLU appealed, as we thought that the court of first instance should have examined the material legality (not just a stamp that says “state secret”) of the classification, and because the discretional power of the Prime Minister to withhold the voice recordings are unconstitutional. The Court of Appeal upheld the ruling of the Municipal court of Budapest. The importance of the judgment is that from now on, it is declared, that such governmental documents are data of public interest.
The process was edifying. We can lay down that today in Hungary it is impossible for a citizen to demand the judicial overview of the state secret classification. In HCLU’s legal interpretation, it shall be possible under the civil procedure. Although the rules are not univocal, and new rules should be adopted, the judiciary has adequate means, but it fails to apply them. There is a draft law before the Parliament on the Classified Information which would regulate the judicial review of the classification, and this process would be available for every citizen. (Under the current rules, only the Date Commissioner has power to review the classification.) However, the proposed institution of the judicial review of the classification has several weaknesses: most importantly, the petitioner has to name the exact document which contains the classified data. This is nearly impossible task, as the petitioner can not get access to such documents. Concerning the minutes of the government meetings, it would adopt a radical solution: every documents related to governmental meeting, such as records and summaries, would be bar from the public as it would encrypted automatically for 25 years. This is a clear sign on the intention of the government to adopt new and very secretive laws.
HCLU waits the written judgment, then decide to turn to the Supreme Court for extraordinary remedy, or to the Constitutional Court with a constitutional complaint.