Hungary Restricts FOI Law; OGP Membership Questioned

3 May 2013

The Hungarian Parliament has adopted restrictive amendments to its freedom of information law that are being criticized by pro-transparency activists.

The main change would allow the government to reject “excessive” requests for information, a standard critics called too vague.

In addition, the changes appear to make the FOI law not applicable when disclosure policies are included in other laws.

As explained by Máté Dániel Szabó, the Director of the Eötvös Károly Policy Institute:

Up to now, the FOI Act served as a subsidiary act when a special law (e.g. the Act on the General Rules of Public Administration Procedures, the Act on Public Procurements, etc.) granted access to data of public interest. If a special law did not specify some guarantees of the right to access, the guarantees (e.g. deadlines, form of access, judicial enforcement of rights to access) laid down in the FOI Act were relied upon. 

The formulation of this new rule narrowing the scope of the act is quite ambiguous and seems to be unprofessional. Nevertheless, its most likely interpretation is that the FOI act ceases to be subsidiary act providing general guarantees, such as deadlines, right to bring the case before the court, powers of National Data Protection and Freedom of Information Authority etc.

Szabó also said the amendments appear to require that requesters provide a justification for seeking personal data.

In addition, for requests for information on government spending which are denied by a firm contracting with the state in a public interest project, appeals must be filed with its supervisory agency and recourse to the courts may not be possible, Szabo said.

Changes Rushed Through

The changes were voted on April 30 after having been introduced April 28.

Szabó commented:

It is worth mentioning that 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. The extreme speed of lawmaking also confirms this theory: the bill was submitted on Sunday and the final vote was held on Tuesday.

Hungarian NGOs — K-Monitor Watchdog for Public Funds, the investigative portal atlatszo.hu, Hungarian Civil Liberties Union and Transparency International Hungary – urged the defeat of the bill. In a letter, they warned the Minister of Public Administration and Justice that the amendment makes civil cooperation in the government’s anti-corruption working group useless.

K-Monitor termed the amendment “the most aggressive and harsh attack against freedom of information in Hungary since the adoption of the Freedom of Information Act (FOIA) in 1992.”

The bill (Bill No. T/10904) is an amendment to the Act CXII of 2011 on the Right of Informational Self-Determination and Freedom of Information.

OGP Membership Questioned

Passage of the amendments came days after  Hungarian officials were in London presenting Hungary’s first national action plan as a new member of the Open Government Partnership.

Critics called the legislative action contrary to OGP goals and one person close to the OGP, Martin Tisne of the Omidyar Foundation, said Hungary’s eligibility “should be reviewed.”

The OGP Steering Committee earlier this year adopted a statement about when it would examine actions taken by member countries.  (See previous FreedomInfo.org report.) The policy was set following protests over the failure of the Philippines, a Steering Committee member, to enact a FOI law.  

The Steering Committee said it will comment on national controversies only in “exceptional circumstances,” according to a Feb. 21 the two-page statement. “The primary mandate of the Steering Committee is to advance the overall principles and values of the global partnership, rather than to engage in country level debates or adjudicate concerns related to individual countries,” the statement said.

The Steering Committee could get involved if a participating government falls below the minimum OGP eligibility criteria. Under the OGP eligibility rules, countries get points for having a FOI law, or being in the process of considering one, but the quality of the law is not a consideration.

Regression a Human Rights Violation?

Also weighing in on the situation in Hungary was Lalanath de Silbva, Director of the World Resources Institute Access Initiative, who suggested that the FOI community consider  “what the human rights and environmental movements have done with regard to roll backs”  namely, “the principle of non-regression.” He wrote: “The FOI movement needs to condemn Hungary’s attempts to roll back FOI as a violation of international law – in particular a violation of the principle of non-regression. 

Hungarian OGP Action Plan Criticized

Transparency International Hungary wrote that Hungary’s action plan “is a mere repetition of the government’s anti-corruption program.” Hungary committed to improve of the publicity of fiscal data, the searchability of public procurement data, the publicity of contracts concluded for the utilization of public property and with the use of public funds and the introduction of integrity control system in the public sector as well as the dissemination of information on anti-corruption and integrity, TIH recounted.

“Although Hungary’s decision to join the OGP is considered a step taken forward, the actual commitments do not guarantee a more open and transparent government,” TIH said. “Moreover, the integration of the OGP action plan into the Government Decision on anti-corruption makes commitments confusing as commitments of that Decision have not been fulfilled although the deadlines are passed”

Civil society “had considerably more suggestions but was not informed why most of its suggestions aren’t included in the action plan,” TIH said.  It continued:

Civil representatives emphasize that the government gives something with one hand and takes away with the other hand. For example the Civil Code in force states that governmental and municipal budget information, data on the use of funds from the European Commission information and on the management of governmental and municipal assets shall not be declared a business secret.    

This regulation is excluded from the new Civil Code. It is essential to include in the new Civil Code or in any other act that the use of public funds cannot be interpreted as business secrecy.

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