A recent amendment to the law on right to informational self-determination and freedom of information (Act CXII of 2011) all but ensures that Fidesz will operate the government in complete darkness. The amendment is alarming for many reasons. Most crucially, it casts a wide net in banning public access to any information handled by public bodies that may be controlled by, for example, the State Audit Office, Government Accountability Office, the Public Prosecutor or the Ombudsman. The amendment passed in an insane two days at a conspicuous time when the major NGOs and news portals were about to ask for the bids in a tender for tobacco retail licenses, which reportedly went to party loyalists. With this law the demonstrable corruption of Fidesz can continue without checks and discussions.
The Stinking Tender on Tobacco and the Two-Day Lawmaking
The events of the last week leading up to the adoption of the amendment indicate that a planned data request concerning the public tender on tobacco retail licenses prompted the government to finally close in on freedom of information. The Government recently decided on the distribution of licenses for the sale of tobacco. The details of the tender remain closed to the public as the government refused to release the bids, the system for evaluating the bids and the points of the winning bids. Last Friday several NGOs and news portals prepared to file a data request concerning information on the details of the tender. Saturday one of the NGOs publicly announced the intent of submitting the request by Monday. However, on Sunday, two Members of the Fidesz faction in Parliament introduced an amendment to the law on freedom of information that allows government agencies to refuse data requests, including the one on the tender for tobacco retail licenses. Indeed, various government agencies had been complaining that servicing data requests was an undue burden and the present refusal to allow for the sharing of public interest data on these grounds is no surprise.
On Sunday a supermajority in Parliament approved a “special urgent” procedure to debate and adopt the amendment in less than two days. Parliament voted in the procedure shortly before 2pm Monday and gave MPs three hours to submit amendments to the bill. Debates on the law took place Monday afternoon when the various factions had a total of 30 minutes to comment and independent Members had a total of 8 minutes. The law was finally adopted Tuesday morning with no support from opposition parties.
The manner of adoption again raises serious concerns about the transparency and credibility of the legislative process. The amendment involves the most serious limitation on freedom of information enacted since 1992 when the first relevant law was adopted. Despite this the Fidesz government circumvented the requirement for public consultation and severely limited debate in Parliament. In 2011 Fidesz changed the rules on the adoption of the “special” procedure. Prior to this Parliament, the House Rules required that 4/5th of Parliament approve the use of the “special” procedure. As laid down in the Fundamental Law, the House Rules could be changed with a 2/3rd vote and Fidesz, relying on its supermajority, reduced the 4/5th threshold for approving the “special” procedure to a mere supermajority. As a result, Fidesz and KDNP MPs could approve the “special urgent” adoption when “only” 77% of the MPs present voted with a yes.
On Monday the NGOs, the Hungarian Civil Liberties Union (HCLU), Transparency International (TI), K-Monitor and Atlatszo.hu, and the news portals, Origo.hu, Index.hu, and HVG.hu submitted the request for information on the tobacco license tender to the Ministry for National Development and the National Tobacco Corporation. On Tuesday, HCLU, TI, K-Monitor and Atlatszo.hu sent a letter to the leaders of the Fidesz-KDNP factions criticizing the amendment to the law on informational self-determination and freedom of information. In a separate letter to the Minster for Public Administration, the NGOs also made clear that they will leave the government task force on corruption if the amendments to the law are adopted by Parliament. Parliament voted on the law Tuesday morning, and the NGOs have since publicly declared that they will no longer participate in the task force.
Minister Navracsics responded to the NGOs leaving the task force in a letter where he also defended the government’s position on the law. Curiously, Minister Navracsics offered a three-page reasoning for the rationale behind the amendment despite the fact that individual MPs submitted the amendment only two days before his letter. Because individual members submitted the bill, there was no requirement to consult the various ministries and agencies. The drafters of the bill also failed to ask the head of the National Data Protection and Information Office before submission to Parliament. It is interesting that Minister Navracsics could, within hours, understand such a complicated amendment and even offer his support and reasoning. As usual he saw no issue with the fact that freedom of information and judicial oversight in the matter were both severely curtailed by giving his ministry much more room to refuse data requests.
Understanding the changes is no simple task. The regulatory framework on data protection and freedom of information is, to put it simply, complex. Nevertheless, the recent changes constitute the most severe limits on the right to freedom of information. Just a year ahead of the elections the government clearly wants to avoid any discussion on corruption by limiting public oversight over government affairs.
The Legal Issues
1. New Limit on Freedom of Information
Most crucially, the new law will limit data requests that pertain to information that may be subject to audit or review by another public office. This new rule potentially involves ANY information handled by public administrative agencies as government agencies can now refuse to answer FOI requests citing insufficient resources and potential audits by other administrative bodies. The rule unconstitutionally limits freedom of information as the body with the information can now arbitrarily refuse a data request and the law provides no details on how this rule has to be interpreted. The reasoning section of that law also assumes that requesting what the state might consider an unnecessarily large amount of data is an abuse of one’s fundamental right to access information.
2. New Limits on Judicial Oversight
To begin with the law seriously limits judicial oversight in freedom of information requests. According to Article 1 of the amendment the public interest data requests regulated by other laws are no longer subject to the law on informational self-determination and freedom of information. Public interest data requests subject to the criminal procedure, civil law procedure or even the public procedure law will no longer have the judicial oversight that is inherent in the law on informational self-determination. This limitation on freedom of information should necessitate a constitutional ground, but the drafters and the government failed to offer such justification both during the parliamentary debates and in the time since.
The amendment incorporates provisions on the exception from trade secrets. These rules are currently part of the Civil Code but the recently adopted new Civil Code, which will enter into force March 2014, is not going to contain them. Therefore, a problem occurs with the scope of the freedom of information act and the former Civil Code provision.
Judicial oversight here pertains mainly to rejections of public interest data requests. The new law will crucially shift review of rejections from the courts to the public administrator when the requests potentially concern trade secrets by any firms, be it private or public, contracting with the state or local government in a public interest project. This means that if a firm invokes trade secrecy as a reason for rejecting the data concerning a project with the state there won’t be any way to turn to an independent court to see if the company rightly or wrongly refused the data request. This shift in the regulatory framework is a serious violation of the principles of checks and balances. The government created the law and now can interpret its own enforcement of the rules.
3. New Restrictions on the Use of Public Interest Data
A confusing but potentially powerful rule in the amendment concerns the new limit on dissemination of public interest data that concerns the personal information of persons undertaking public duties. Up to now, access to such data was governed by the general rules of freedom of information. The law requires that certain personal information of public officials be accessible to the general public. It means that neither purpose specification, nor justification of personal or public interest was required when requesting and/or disseminating public data. However, according to the amendment the use of public interest information of public sector employees has to be justified with respect to the principle of data management for a specified purpose. This creates the possibility to restrict the dissemination of such data. The needed purpose itself is yet unclear according to the law and the reasoning and so is the intention of the lawmaker.
4. Applicability for ongoing cases
As we mentioned above, several data requests have been submitted recently on some scandalous cases of misuse of public powers, including the licensing of tobacco retail. It would be hard not to notice that the government intends to intervene these cases. Nonetheless, the harm that the adopted amendments might cause to freedom of information goes way beyond the tobacco tender.