Access to public information P 25/12
At the hearing on 13 November 2013 at 8.30 a.m., the Constitutional Tribunal (full bench) considered a question of law, referred by the Supreme Administrative Court, concerning access to public information.
The Constitutional Tribunal adjudicated that Article 1(1) and Article 6(1)(1)(a) and (b) as well as Article 6(1)(3)(c) of the Act of 6 September 2001 on Access to Public Information - construed in a way that they categorised data which constituted an element of the process of exercising the powers of the President of the Republic of Poland, set out in Article 144(3)(6) of the Constitution, as public information that was subject to disclosure pursuant to the Act on Access to Public Information - were not inconsistent with Article 144(3)(6) in conjunction with Article 122(1) of the Constitution.
As to the remainder, the Constitutional Tribunal discontinued the proceedings.
Dissenting opinions to the judgment were submitted by two Judges of the Constitutional Tribunal: Mirosław Granat and Marek Zubik.
The court referring the question indicated that the subject of the allegation comprised provisions which defined the term ‘public information’ and which provided for the obligation to disclose it. The following provisions were selected as higher-level norms for the review: Article 144(3)(6) and Article 144(3)(9) in conjunction with Article 122(1)-(5) of the Constitution, i.e. provisions that specified the scope of powers vested in the President of the Republic of Poland within the scope of legislative process.
The basic higher-level norm for the review referred to the indication of the so-called presidential prerogatives (the signing of a bill passed by the Parliament, refusal to sign the bill, referral of an application to the Constitutional Tribunal) as well as, by reference to Article 144(2) of the Constitution, it additionally comprised the normative content which referred to the essence of the above-mentioned prerogatives of the President of the Republic of Poland.
That comprised two elements: the enumerated official acts of the President of the Republic of Poland did not require, for their validity, the signature of the Prime Minister as well as the President was to accept responsibility for the issuance of them and their content. By contrast, indicated as one higher-level norm to be read in conjunction with other provisions, paragraphs 1 to 5 of Article 122 of the Constitution in greater detail specified the powers of the President of the Republic of Poland which were related to the exercise of the above-mentioned prerogatives, and hence they narrowed down freedom within the scope of exercising those prerogatives, in particular by determining cases in which the President of the Republic of Poland had a constitutional obligation to sign or refuse to sign a bill passed by the Parliament and submitted by the Marshal of the Sejm.
In conclusion, the higher-level norms for the review indicated in the question of law amounted to specifying the essence of the enumerated presidential prerogatives as well as to determining cases where the exercise thereof occurred freely, and when the scope of freedom was non-existent or was marginal.
In the view of the Constitutional Tribunal, the juxtaposition of the subject of the allegation with the higher-level norms for the review led to a conclusion that the latter were inadequate as regards examining the constitutionality of the legal norm formulated in the question of law referred by the Supreme Administrative Court:
- the introduction of the obligation to disclose public information in the Act on Access to Public Information did not show any links to the subject of the regulation in Article 144(3)(6) of the Constitution, since in no way did it refer to the issue of exercising the President’s powers to sign or refuse to sign a bill passed by the Parliament, without any need for the signature (countersignature) of the Prime Minister as well as with the President’s acceptance of responsibility in that respect;
- compensation by the court referring the question of law did not specify the way to (narrowed down the freedom to) exercise the presidential prerogatives within the scope of signing the bill, indicated in Article 122(1) of the Constitution. The challenged provisions, in particular, did not provide for an additional obligation of cooperation on the part of the President within the scope of exercising the said prerogatives;
- obligations within the scope of disclosing public information were not related to the essence and way of exercising the prerogatives enumerated in Article 144(3)(6) of the Constitution. The said conclusion was evident in the light of the facts of the case falling within the scope of the question of law under examination. Indeed, the President of the Republic of Poland signed the amending bill (which became the Act of 25 March 2011 amending certain acts related to the functioning of the system of social insurance) on 7 April 2011, and a motion submitted by Mikołaj B. in which he requested the disclosure of all expert opinions, legal opinions and official documents related thereto, was dated20 April 2011, and thus it could not have led to a decrease within the scope of exclusive powers of the President of the Republic, set out in the Constitution, nor could it in any way have determined the way of exercising the prerogatives of that authority;
- the essence of the prerogatives of the President was related to systemic aspects (the President’s relation to the Prime Minister, or the lack of such a relation), and the issue of the freedom to exercise the said prerogatives went beyond the scope of the normative content of Article 144(3) of the Constitution and the essence of the prerogatives of the President arising from that provision (in conjunction, inter alia, with Article 144(2) of the Constitution). This was, inter alia, confirmed by Article 122 of the Constitution, from which it followed that, in certain circumstances, one could not speak of “the realm of exclusive powers” of the President (cf. Article 122(2), Article 122(3) second sentence, Article 122(4) first sentence as well as Article 122(5) second sentence of the Constitution);
- what also weighed in favour of the inadequacy of the indicated higher-level norms for the review was that – by contrast with the scope ratione personae of the challenged provisions of the Act on Access to Public Information – they did not concern the realm of constitutional rights and freedoms, which undoubtedly included the right of access to public information, arising from Article 61 of the Constitution. The statutory specification of the constitutional right of access to public information that arose from the challenged provisions in the case under examination, and which consisted in the introduction of a specific obligation to disclose information, functioned independently from the exercise of the presidential prerogatives, in no way affecting the scope of the President’s discretion that had been outlined constitutionally.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Zbigniew Cieślak.
The judgment is final and its operative part shall be published in the Journal of Laws