Profit-making through FOI?

A draft bill on the re-use of public sector information submitted to the Hungarian Parliament by the government would make the national FOI legislation highly unpredictable - according to the HCLU and K-Monitor, major Hungarian NGOs working for transparency and freedom of information. The proposal intends to harmonize Hungarian freedom of information legislation with the EU law by implementing the 2003/98/EC Directive on the re-use of public sector information. The latter is to be revised soon, due to a proposal of the European Commission. The HCLU and K-Monitor ask legislative authorities to withdraw their draft proposal due to the following reasons.

1. The draft law confuses “public sector information” and “public interest information” thus deteriorating existing freedom of information regulations.

2. Access to information held by public authorities is free, as only necessary reproduction costs shall be charged. Contrarily, the draft bill makes access to public interest information subject to a possible reimbursement based on a “reasonable profit margin”.

3. Whereas the usage of public interest data has no limitations, the government’s proposal stipulates an “agreement on re-use” between the respective public authority and the data requester, thus data re-use may be subject to certain binding conditions.

4. The draft proposal is an infringement of the rule of law: it depends solely on the statement of the data requestor whether limitations on free distribution shall be made alongside with a profit-orientated reimbursement charged by the public authority, or general rules of FOI - free access and unlimited re-use - will be applied. The draft bill primarily endangers the right to access of legally uneducated citizens who are unable to pay lawyers, since they may be driven to make unintentional statements.

5. The draft is meant to serve as harmonization of the respective EC Directive. However, the draft law is out-of-date: the European Commission has already accepted a proposal on the revision of the PSI Directive which “establishes the principle that public bodies should not be allowed to charge more than costs triggered by the individual request for data (marginal costs); in practice this means most data will be offered for free or virtually for free, unless duly justified.” Thus, the Hungarian draft law on public service information is regarded as obsolete even before coming into existence.

6. The proposal violates formal requirements on fundamental right limitations as it gives authorization to regulatory restriction on freedom of information. The bill is formally unconstitutional.

7. Existing Hungarian regulations meet the requirements of the original EC Directive. There’s no specific harmonization urge, with particular reference to the proposed revision of the directive.

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