We have won no less than three cases recently concerning data of public interest. The Centre for Budapest Transport (CBT) and the Hungarian Medical Chamber (HMC) was ordered to release the requested information to our clients free of charge, while MoD ARZENÁL Co., involved in the sales of military devices, has been ordered to reveal the conditions under which they had sold disarmed combat helicopters withdrawn from operation. In all three cases, the decision of the court made it easier to access data of public interest.
Information for free and not for fortunes
Data of public interest is often withheld from the requesting party by charging an unreasonably high price for its disclosure. The amounts in question can be shocking: the requesting party may receive an invoice of millions of forints, which is rarely legitimate. In almost every case, the likely purpose of the data processor is to discourage the journalist or “provoking” citizen from “snooping around” politically sensitive, delicate information.
Our first client would not give in: the vice president of Közlekedő Tömeg Egyesület (“Crowd on the Move Association”), which publishes (often critical) observations and suggestions about public transportation on its website and Facebook page, instituted legal proceedings for the free-of-charge disclosure of passenger traffic (passenger count) data of several bus services operated by Centre for Budapest Transport. These data are necessary for the association to put forward well-founded, professional suggestions on public transportation. The transportation company wanted to charge the association more than 1 million HUF + VAT for the requested data.
This was an infringement in itself, as, according to the National Authority for Data Protection and Freedom of Information, no VAT can be charged for the disclosure of data of public interest. The compliance with a request for data of public interest is not a for-profit activity but a constitutional obligation.
CBT justified its action by stating that collecting the data in question would impose a disproportionately heavy workload on the company.
At this point we believed that it would be sufficient to prove that the requested data could be retrieved from the computer system effortlessly and quickly. The association requesting the data had a witness who, as a former employee of CBT, had used the company’s administrative system and was familiar with its operation. But CBT wouldn’t leave it at that, and various reasons were cited why the company would not comply with the request: based on its previous activities, the claimant is likely to use the data to discredit the company; the association does not have sufficient professional expertise to assess the data; or that they would disclose the data only if the claimant signed a confidentiality statement. These arguments, however, are unacceptable: firstly, none of them is related to the costs and expenses, whereas financial aspects were the subject of the lawsuit. Secondly, the purpose for which the claimant wants to use the data in question has no relevance to the disclosure of it. Thirdly, as the requested information is of public interest, its usage cannot be restricted; anyone may forward, comment and use it in any way they choose. Information of public interest is of public interest because any member of the general public may access, assess, and spread it, even if it means criticism to a company of the local government.
In the end, the court of first instance ruled in favour of our client; ascertaining that the requested data could be retrieved fast and electronically, the court did not find it justified to charge any amount of money for their disclosure.
We have won a similar case against the Hungarian Medical Chamber (HMC). The claimant wanted to access data relating to the financial management of HMC, such as how one of HMC’s companies was able afford a property that was worth almost 150 million HUF some years ago (and is probably worth even more today), or to whom and on what grounds did another company of theirs pay more than 20 million HUF yearly in two subsequent years.
In the course of the lawsuit, initiated by Zsombor Kunetz claimant, HMC could not prove that compliance with the request for data “would disproportionately overburden the workforce that is needed to carry out core activities.” HMC’s witness confirmed that all accounting records were kept electronically and that it was also possible to search employees’ data in the system, among other things. Collecting the required data was, thus, an easy task to perform. The interesting thing here was that Zsombor Kunetz, being a medical doctor and a member of the Chamber, was entitled to access all data relating to the organization’s financial management according to the statutes of HMC; the requested information therefore had to be disclosed free of charge anyway.
Trade secrets and national defence cannot be the black hole of data of public interest
In the third case, journalist Márton Sarkadi Nagy requested information from one of the companies of the Hungarian Ministry of Defence (MoD) about the trade of military helicopters withdrawn from operation. Sarkadi Nagy requested the full documentation of the transaction between the MoD company and Solar Ltd. The Court of Nyíregyháza delivered a brilliant judgment, facilitating the freedom of information.
Our client was aware that military technology was a delicate matter and he did not intend to disclose any protected information that could cause security risk. For this reason he noted in his request that if the data processor considered any piece of the requested information too sensitive to release, it should be left out of the disclosed data. The MoD company, however, did not disclose any data, justifying their rejection by saying that publishing the requested information would harm their commercial interests. Legal proceedings were thus instituted, in the course of which the company cited national defence and national security reasons for withholding the data.
The court, however, found that the company did not specify how exactly the disclosure of the requested data would harm their commercial interests. The concept of business secret hardly applies in the context of managing public funds anyway.
The court also held that “when data of public interest and data public on grounds of public interest are in conflict with a business secret, transparency of the use of public property shall have higher priority and shall justify the disclosure of the data of public interest.” This means that even though the company of the Ministry of Defence signed a contract with a private company, information relating to them had to be released since the disarmed combat helicopters had been state property. The court then authorized the defendant to hide the serial number identifying the helicopters when disclosing the data so that no national defence interests would be harmed. The judgment is final, the defendant did not appeal against it.
Our clients were represented by dr. Kata Nehéz-Posony against HMC and CBT, and by dr. Zsolt Szegedi against MoD Arzenál.