Hungarian NGOs Call FOI Changes as Unconstitutional

3 July 2013

Groups in Hungary are challenging the constitutionality of recent amendments to the freedom of information law.

The modified law has the potential to curtail fundamental rights, according to a July 2 statement and a letter to Hungary’s president, Janos Ader (available here in Hungarian), sent by Transparency International (TI) Hungary, TASZ and K-Monitor.

The new law was only  somewhat improved after initial protests caused President Ader to send it back to lawmakers for reconsideration on May 9, the groups said.  A new version was passed and made effective June 21.

The second bill is “not much better than the one vetoed by the president,” the three civil groups wrote July 27.

The main conceern is that the law will place arbitrary restrictions on the size of requests for government data. (See previous FreedomInfo.org report.)

The groups said:

According to the amendment, citizens are forbidden to come up with requests that demand “overarching, invoice-based”, or “itemized” audit of the “management of a public authority.” The problem is only that it is left to the data holder authorities’ discretion to decide what qualifies as overarching, invoice-based or itemized audit. 

The International Press Institute (IPI) and its affiliate, the South East Europe Media Organization (SEEMO), also have raised objections. IPI and SEEMO said they were sending a delegation to Budapest July 1-2 as part of a fact-finding mission to examine the effects of changes to media laws.

Text of the July 2 Statement:

The new law on freedom of information, previously vetoed by President János Áder, has entered into force following an amendment on June 21, 2013. However, according to the opinion of Transparency International, the Hungarian Civil Liberties Union and K-Monitor watchdog organization, the final version does not represent a great improvement compared to the form vetoed earlier by the president. That is, there is still no obstacle to data holders arbitrarily restricting public data access.

In an open letter to the Commissioner of Fundamental Rights, the President of the Curia of Hungary, and the Prosecutor General (available here in Hungarian) we formulate the concern that the FOI law in its current form has still the potential to curtail fundamental rights. As a consequence, we ask for its constitutional review and eventual annulation, based on the below reasons.

 According to the amendment, citizens are forbidden to come up with requests that demand “overarching, invoice-based”, or “itemized” audit of the “management of a public authority”. The problem is only that it is left to the data holder authorities’ discretion to decide what qualifies as overarching, invoice-based or itemized audit. 

In case request to public data access is rejected, citizens can turn to the Hungarian National Authority for Data Protection and Freedom of Information. However it is un clear whether denying data holders can be sued at a court, or a court appeal is possible only if all administrative remedies have been exhausted. The law’s provisions are ambiguous with regards to this point. There are concerns that authorities could delay a case further and further, until the judicial remedy becomes inaccessible. This evokes uncertainty in regard of the right to turn to the court, a fundamental safeguard in the field of access to public interest information.

No matter the presidential veto, the possibility for data holder authorities to limit access to public data by interpreting the law to their own advantage is still open after the amendment to the FOI law. Moreover, the limitation of fundamental rights, as enabled by this law, is not justified, the reason for the restriction of public interest data disclosure not being the protection of some other fundamental right. In light of this, such an unjustified curtailment of a fundamental right jeopardizes the right to public data access as guaranteed by the Constitution.

This is why, in our open letter jointly written with the Civil Liberties Union and K-Monitor, we solicit the recipients to exercise their right as enshrined in the Constitution to initiate a review of the current FOI law at the Constitutional Court. We are convinced that the Constitutional Court will establish unconstitutionality of the law and will repeal it.

 

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