Altered Hungarian Bill Still Draws Objections

14 June 2013

The Hungarian parliament June 11 made slight modifications to previously rejected legislation revising the freedom of information law, but critics still are raising objections.

In particular, the amendment will allow public agencies too much latitude in to reject FOI claims deemed excessive, said Fanny Hidvégi, FOI and data protection director for the Hungarian Civil Liberties Union, quoted in a Christian Science Monitor article.

“The law can potentially allow government officials to get away with corruption unpunished,” Miklos Ligeti of Transparency International told Agence France Presse. “It is the first step on the road to full state control of public interest information,” he added.

President Janos Ader in early May returned a previous version of the bill, passed April 30, but is expected to signs this version. (See previous report.)

Following the presidential veto, Attila Péterfalvi, president of the Hungarian National Authority for Data Protection and Freedom of Information (NADPFOI) wrote a letter saying that due to the creation of so-called “specific legal provisions regulating data access, the FOI law’s applicability can be restricted at will.” He expressed concern, however, over requests for large amounts of data.

The Hungarian Civil Liberties Union, investigative portal, K-Monitor watchdog for public funds and TI Hungary jointly had voiced strong concerns about the original proposed law and remain opposed to the bill.

The text of the amendment “still doesn’t prevent arbitrary restriction of public interest data disclosure,” according to a recent statement by Transparency International Hungary.

The statement contnues:

According to the new version, what would be forbidden is that citizens come up with requests that demand “overarching, invoice-based”, or “itemized” audit of the “management of a body performing public sector duties”. The devil, nonetheless, lies again in the details – as it is at the discretion of bodies possessing such data to decide what qualifies as overarching, invoice-based or itemized audit. 

Nor it is a reason to rejoice that it is the NADPFOI that citizens requesting data can turn their complaints to, in case their request is rejected. The reason is that it is simply unknown whether it is possible to appeal to a court if data holders reject a request. It might be that court appeal is only possible once the citizen has exhausted all administrative remedies. In such cases the authorities, by endlessly delaying the case, can jeopardize the option of the judicial remedy.

The fact that legislators have introduced the term “abusive data request” into public awareness, reveals a complete misunderstanding of what is at the core of the concept of freedom of information. Citizens implement their fundamental right laid down by the Constitution when they control the exercise of public power and the spending of public funds by requesting data. Thus, abuse is not likely to take place on behalf of citizens who request public data. Rather, it will be committed by data handling authorities who will deliberately decide what data to disclose and what to keep for themselves. Unaffected by the presidential veto, curtailment of the right to the access and dissemination of public interest data is still a realistic threat. 

This can only be redressed if, instead of modifying it, the proposers withdraw the law. There is no obstacle to do so, as there is no need of this legislation whatsoever. As the amendment passed the final vote unchanged, it is absolutely necessary to initiate a process at the constitutional level, as also the new phrasing of the amendment weakens the right to access public interest data.

As the president sent the law back to the parliament in the first round, now he can only ask for the constitutional review of those new provisions which the parliament inserted in the legislation following the presidential veto. Constitutional review of the entire law can be only requested by Máté Szabó, Hungary’s ombudsman for civil rights. 

The single positive element of the amendment is that the provision narrowing the scope of the FOI act was omitted. Thus, if  by instance another law grants the right to access or copy information, and this right is curtailed in some respect, it is still possible to initiate court litigation on the basis of the FOI law.

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