Despite international success, freedom of information is on a slippery domestic slope – and not in favour of the public.
On November 8 the European Court of Human Rights passed an important, and in many ways just, judgement. We applaud all parties involved, who fought for the extension of right to access to information of public interest as widely as possible. With the international advancement of this right, it is imperative to take a closer look at some worrying domestic trends. Delivery of judgements such as the one in the aforementioned Helsinki case can be prolonged for years, while the Hungarian government can go on covering up information about how it spends tax payers’ money.
Are we happy?
The Helsinki v. Hungary ruling is a great success. While the European Convention on Human Rights does not contain any articles regarding the access to information of public interest, judicial practice had evolved to the level to provide protection for right of access to state-held information - as part of the right to freedom of expression.
This is the result of decades of legal evolution, in which the case HCLU v Hungary was an important milestone. The HCLU case was the first, where the Court ruled that similarly to the press, civil organizations fulfilling the role of a social watchdog, may also request information from the state, in order to discuss affairs of public interest. In the Helsinki v Hungary case, the Helsinki Committee requested information to conduct a research on the effect of the mandatory appointment of public defenders looking for patterns and anomalies in case distribution between attorneys. Since we are also speaking of a watchdog organization and the information in question is of public interest, the Court effectively reinforced its preceding rulings. The Grand Chamber, however, took it a step further and widened the scope of recipients seeking to access of public data. On the one hand, the ruling reinforced that, as opposed to the arguments of the Hungarian and British governments, the Convention protects right of access to state-held information even if the text of the Convention is not particularly revealing on this point. On the other hand, according to the Court’s position, the state is obliged to grant access upon individual requests if, for instance, the information is indispensable to the free expression of the individual (especially when it comes to exercising the right to freedom of expression – i.e. “the freedom to receive and impart information” where the denial of data requests constitutes an interference with that right).
Now, similarly to the press and civil society organizations, the Convention protects the rights of researchers, writers, bloggers or Facebook opinion-leaders. The range of subjects has considerably widened, but the legal protection does not apply to everyone, so we can expect further milestones in the future judicial practice as well.
Meanwhile in Hungary
While those seeking access to information of public interest may celebrate the success of this Hungarian case across Europe, we cannot overstate the fact that in Hungary, access to information is more of a favor than a right. The reason for that is that the Hungarian government drags court cases out to the maximum before getting an international slap in the face. And in the meantime, they chip away at the freedom of information through amendments almost every other month. In the last five years, - i.e. since the adoption of the Information Act on information self-determination and freedom of information - we can observe a trajectory of the evolution of domestic freedom of information that is the deliberate narrowing of the rights and increasing concealment from citizens. This walk of shame subsumed the following stops:
- 2013 – prohibition of comprehensive, itemized account level information requests
By 2013 the Parliament had enough of investigative journalists pursuing research on the potentially squandering use of public funds by state organizations. Therefore, they enacted a law that only permits state oversight bodies to audit the management of public organs. From this moment on, we could sleep well, since the Government Control Office, infamous for its ethical standards, and the State Audit Office of Hungary - known to be a very cautious auditor of party financing (i.e. prone to conduct only formal audits with the lack of proactive, in depth investigations) - will do the lion’s share of this job – well shielded from the eyes of citizens.
- 2014 – preparing the privatization of corporation tax
Already by the end of 2014, changes were afoot in sports financing, when, with the amendment of the sports act, the parliament made it possible for some sports associations to receive financial support from corporate tax subjects rewarded with tax benefits, without having to publish more than the summary of subsidies (when complying with access to information of public interest). This means that the Hungarian state has renounced tax income for the sake of the associations of certain favored spectator sports, while the route and details of the monies can stay a secret. The selection of eligible associations is the result of a murky, politically entangled process, while active politicians heading each and every chosen association.
- 2015 – a heavy blow to request for information
By the summer of 2015, the frustration in the government caused by successfully enforced fulfillment of public data requests resulted in a new amendment of the FOI-Act. The proposal put forth by the Minister of Justice transformed the controllers’ fruitless arguments in front of courts into legal frameworks: the parliament enacted a law to change the legal basis of future deliverable decisions – practically annihilating arguments in precedent-value judgements in the former FOI-cases. The law made it possible for data owners to reject public data requests on the grounds that the information serves as the basis of a decision that might never be passed, since the legal process has not even started yet; in a similarly surreal vein, they also barred access to expensive, commissioned studies citing copyright – aiming at averting the next Századvég fiasco. The most stunning element of the amendment package was, however, undoubtedly that it made it possible for the controllers to ask for payment for not only copying services and posting, but also for processing the request itself, if they consider that it would take too much up of their time. The goal of the amendment, which goes against the not-so-firm-as-granite Fundamental Law of Hungary, is to deter people from requesting information, especially since the amount of the fee to be paid for the fulfillment of the data request was hanging in the air for over a year due to the lack of exact executive regulation on the matter.
- 2016 – playing a shell game with public funds, or the year of tricks with sectoral regulation
Since the government soon found itself in the crosshairs with its amendments to the FOI-Act, it began experimenting with new solutions and began to draw state owned enterprises out of the obligation to publish public data, one by one. The ideology behind it was that trade secrets and business interests, broadly construed, overwrote the obligation to grant access to public data. The legislator disregarded the fact that these corporations were not traditional operators on the market, and while spending tax-payers’ money, they cannot hide behind existing trade secret legislations. A case in point was the delirious Central Bank CSR founded with several billions of public Forints. The modifications began with the one regarding the Post Office, jumping successfully the hurdle of the constitutionality test applied by the Constitutional Court of Hungary. This was followed by the attempt to make the dubious transactions of the Central Bank (eg funnelling huge amounts of public funds into shadily established and operated foundations), confidential but fortunately this stayed in the phase of experimentation. During the debate of the amendment to the law regulating other state-owned enterprises (act CXXII of 2009), the explanation precisely stated that freedom of information cannot impede interest of national economy disproportionately: that is, tax payers harm the common goal by taking an interest in how and what their money is spent on. The logic is crystal clear and the trend is worrisome: controllers can now hinder the compliance of requests with several layers of arguments: 1. The request does not regard the use of public funds 2. Yes, it is affecting public funds, but access is not possible due to trade secrets of a broadened scale 3. Yes, it affects public funds, perhaps it is not a trade secret, but you may only access the data through paying, since the request places a disproportionate burden on the human resources of the state organ.
- 2016 – the rotten cherry on top: the reimbursement regulation
The extension of chargeable fees based on the 2015 FOI-Act amendment resulted in a strange legal situation: the law contained the possibility of imposing a fee for fulfilling public data requests, but “forgot” to regulate what qualifies as extra workload serving as the basis of the fee, how the amount is calculated and what the maximum fee is. The solution was to adopt a detailed executive regulation which took over 1.5 years for the government to come up with [government decree no. 301/2016 (IX.30)]. In the meantime, bold data controllers already imposed a fee for requests that did not please them and the HCLU provided legal assistance in several court cases against the illegal imposition of arbitrary fees. The regulation undoubtedly opens a new era: people and organizations demanding information that leads over four hours of workload are blackmailed with a fee of maximum 4400 HUF/hour, otherwise the information remains hidden. There is still no guarantee of knowing who, and with what method keeps track of the time spent on the fulfillment of the request, since public offices are not obliged to keep an internal record of such processes (and this is why the administration cannot determine the marginal cost pricing in the case of public sector information - PSI). So, it seems, the only way is to rely on the estimation of the organizations themselves, and since they usually aim for secrecy, we cannot be blamed to question the objectivity of their self-assessment.
The details are worrying, the overall picture is alarming. We continue to think that imposing a fee in itself limits the right to freedom of information, since it only furthers the stealth of power by claiming disproportionate workload and by promoting the belief that meeting transparency criteria for the management of public funds is not a public task. Previously, we have argued that the state abuses its power with such regulations, since informing the public is not a service or a favor, but a fundamental task. The right of access to information of public interest – as a basic right in communications – means freedom, acknowledgement, and practical assurance of acquiring information. The right thing to do for the government would be to widen freedom of information proactively instead of limiting transparency, and making people beg for the favor of disclosing information that is relevant for the public.
We are light-years away from this. Thus, while the Helsinki-ruling is an important development, we have much work ahead of us. HCLU has identified the annulment of the fee-imposing regulations as a strategic goal and provides legal assistance to citizens fleeced for their curiosity – may it take years or another international slap in the face to the government.