HUN-2004-1-003

a) Hungary / b) Constitutional Court / c)  / d) 07-04-2004 / e) 12/2004 / f)  / g) Magyar Közlöny (Official Gazette), 2003/43 / h) .

Keywords of the Systematic Thesaurus:

01.02.04

Constitutional Justice - Types of claim - Initiation ex officio by the body of constitutional jurisdiction.

05.03.24

Fundamental Rights - Civil and political rights - Right to information.

05.03.25.01

Fundamental Rights - Civil and political rights - Right to administrative transparency - Right of access to administrative documents.

Keywords of the alphabetical index:

Data, public, access / Transparency, decision-making process.

Headnotes:

The restriction on the availability of public data (information) concerning the preparation of decisions is not justifiable after a decision has been taken on the majority of the documents associated with the cases. From this, it follows the publication of data associated with the preparation of decisions is not an obstacle to the "quality", "effectiveness" or independent nature of public servants' work. Here, the emphasis is put on creating a transparent administration that is responsible to society and devoid of corruption, as well as on the further use of information.

Summary:

The petitioners challenged Article 19.5 of the Act on the Protection of Personal Data and the Freedom of Information (Act on Data Protection), according to which any data created for internal use or associated with the preparation of decisions is not to be made public within twenty years of its being handled unless the law requires otherwise or the leader of the body permits it to be made public earlier. The petitioners also challenged Article 4.1 of the Act on State and Official Secrets (Act on State Secrets), which contains the definition of official secrets.

According to the petitioners, the provisions in question were "elastic clauses", and their wording, which was too general, violated Article 61.1 of the Constitution (on the right to know information of public interest) and Article 8.2 of the Constitution (on the limits of the limitation of fundamental rights).

After reiterating its previous decisions concerning restrictions on the publication of public data and the test to be applied in the limitation of fundamental rights, the Constitutional Court stated that neither the automatic restriction on the publication of data handled in association with the preparation of decisions, nor the definition of official secrets violated the fundamental right to know public data. As regards the first, the Court referred to the contents of the Constitutional Court's Decision no. 34/1994 [HUN-1994-2-010], and stated that the automatic restriction on publication was to guarantee the quality and effectiveness of public servants' work by permitting public servants to operate informally and independent of the pressure of publication. That, in fact, meant a sort of facilitation of the work of persons handling data of public interest, since decisions on the secrecy of information in the preparation of decisions needed not to be made on a case-by-case basis at the time the information was being created. In relation to official secrets, the Constitutional Court held that that kind of restriction on publication served the purpose of promoting the undisturbed nature of the work of the state body and protecting that body against undue influence. Moreover, there were adequate guarantees ensuring that the legal limitation was not arbitrary: the list of the kind of information classified as secret was public; the restriction could only be made for as long as necessary; and it had to be reviewed regularly. The real guarantee was the possibility of judicial review of the justification of the classification of the information as secret. On that basis, the Constitutional Court rejected the request of the petitioner to annul the impugned provisions.

At the same time, the Constitutional Court initiated ex officio proceedings concerning Article 19.5 of the Act on Data Protection to examine whether it contained the requisite legal guarantees for the exercise of the fundamental right. The Court found that the restriction on the availability of public data concerning the preparation of decisions was not justifiable after a decision had been taken on the majority of the documents associated with the cases. From that, it followed that making the data associated with the preparation of decisions public was not an obstacle to the "quality", "effectiveness" or independent nature of the work of public servants. The emphasis was put on creating a transparent administration that was responsible to society and devoid of corruption, and as well as on the further use of information. The impugned part of the Act on Data Protection, however, did not differentiate between restrictions before and after decision-making. Consequently, the restriction was based only on formal considerations. The system of guarantees was rather imperfect (the classification of the documents as secret could stand for an indefinite period, since storing itself could also be considered handling). The expressions "preparation of decisions" and "for internal use" lacked the requisite precision, and judicial review did not amount to an examination of the substance. Thus, the Constitutional Court stated that by neglecting the regulation of the system of guarantees, the legislature created an unconstitutional situation. The Court gave the legislature until 31 December to remedy that neglect.

Cross-references:

­ Decision no. 34/1994, Bulletin 1994/2 [HUN-1994-2-010].

Languages:

Hungarian.