Trybunał Konstytucyjny

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Biuletyn Informacji Publicznej

Access to public information (a restriction on the right to public information due to the protection of a vital state interest) K 33/11

The way of introducing the challenged provisions is inconsistent with the Constitution.

At the hearing on 18 April 2012 at 8.30 a.m., the Constitutional Tribunal considered an application submitted by the President of the Republic of Poland with regard to access to public information (a restriction on the right to public information due to the protection of a vital state interest).

The Constitutional Tribunal adjudicated that Article 1(4)(a) and Article 1(4)(b) of the Act of 16 September 2011 amending the Act on Access to Public Information and certain other acts were inconsistent with Article 121(2) in conjunction with Article 118(1) of the Constitution, due to the fact that they added Article 5(1a) and Article 5(3) respectively (the so-called Rocki’s amendments) to the Act on Access to Public Information.

The Tribunal did not assess the substantive content of the provisions, but – as requested in the President’s application – only reviewed the constitutionality of the way in which they had been introduced into the Act.

The Constitutional Tribunal stated that the Sejm passed a bill which entirely concerned the implementation into Polish law of the Directive 2003/98/EC on the re-use of public sector information; the bill passed by the Sejm was then referred to the Senate.

In the course of the Senate’s work on the bill, Article 1(4)(a) and Article 1(4)(b), challenged by the President, were added to the bill for the purpose of restricting the right to public information in order to protect public order, security and important economic interests of the State.

The said amendments were adopted by the Senate and, despite a negative opinion of a committee which was competent in that regard, were not rejected by the Sejm. In order not to hinder the implementation procedure, the President signed the bill and referred it to the Constitutional Tribunal for a review.

The assessment of the President’s allegation was facilitated by the well-established jurisprudence of the Constitutional Tribunal and the doctrine supporting the jurisprudence, both of which specified the scope of admissible amendments that might be proposed by the Senate with regard to a bill passed by the Sejm. The limitation on the scope of matters regulated by such amendments serves the main purpose of legislative proceedings, which consists in ensuring that the basic content which is ultimately included in the final version of a parliamentary act has been subjected to the complete procedure carried out by the Sejm (three readings).

The Senate is bound by the substantive content of the bill passed by the Sejm; the Senate may modify and amend measures adopted therein, but it may not – within the scope of introducing amendments – add completely new normative elements to the bill i.e. those which have not been provided for in the text of the bill. What serves such a purpose is the right to introduce legislation, which is obviously vested in the Senate. Rocki’s amendments – which were not regulated in the bill passed by the Sejm – introduced a restriction on the right to public information, and undoubtedly in that regard they went beyond the scope of the matters regulated in the bill which had been referred to the Senate for examination.

Moreover, the Tribunal drew attention to the fact that, in the case under examination, there was further limitation on the scope of the Senate’s amendments, which was related to the character of the bill (the amending bill) and the procedure in accordance with which it had been examined (the expedited procedure). The amendments under assessment constituted interference with the content of the Act being amended, imposed without taking into account the purpose for the amending bill which justified adopting the expedited procedure for examining the bill.

As a result, the Constitutional Tribunal concluded that the President’s allegation was justified and that the way the Senate had introduced the amendments infringed Article 121(2) in conjunction with Article 118(1) of the Constitution.

The hearing was presided over by Judge Marek Zubik, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.

The judgment is final and its operative part shall be published in the Journal of Laws.