28 March 2012
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Hungary
Case against the Office of the Prime Minister
The Court of Appeal declared in its final judgment on 21 of January
2009, that the minutes of the government meetings are data of
public interest. Unfortunately, much information won't be available
for the public.
The Hungarian Civil Liberties Union (HCLU) requested the disclosure
of the minutes of the cabinet meetings, their appendices and
the voice recording of one meeting. HCLU's aim was to test the
new legal provisions adopted following the decision of the Constitutional
Court and to challenge the practice of classifying all data consistently
for 50 years. The Office of the Prime Minister (OPM) handles
the records. In their answer to our request, the OPM stated that
every record and its appendix are classified for 50 years as
"state secret". HCLU filed a legal action, as we thought
it is impossible that the government discuss nothing else but
state secrets during the meetings. During the judicial process,
the representative of the OPM referred to the Act LXIII of 1992
on the Protection of Personal Data and Public Access to Data
of Public Interest which allows the data controller to withhold
data prepared or recorded, on which the decision was made during
the process aiming at decision making in the field of the sphere
of tasks and powers of the organs.
The Municipal Court of Budapest (which proceeded as court of
first instance) declared that documents can not be classified
"globally", only data matching the list of classifiable
and defendable interest can be classified as state secret. The
Court ruled that the Office of the PM to publish the documents,
however, the Court also ruled that document containing data of
public interest contains data not accessible by the claimant
shall be made unrecognizable. The Court ruled that the voice
records are lawfully locked away from public. Regarding the voice
records, the publication depends on the decision of the Prime
Minister, and there are no objective control elements (for instance
time limit) limiting his power to withhold such information.
HCLU appealed, as we thought that the court of first instance
should have examined the material legality (not just a stamp
that says "state secret") of the classification, and
because the discretional power of the Prime Minister to withhold
the voice recordings are unconstitutional. The Court of Appeal
upheld the ruling of the Municipal court of Budapest. The importance
of the judgment is that from now on, it is declared, that such
governmental documents are data of public interest.
We can lay down that today in Hungary it is impossible for a
citizen to demand the judicial overview of the state secret classification.
In HCLU's legal interpretation, it shall be possible under the
civil procedure. Although the rules are not univocal, and new
rules should be adopted, the judiciary has adequate means, but
it fails to apply them. There is a draft law before the Parliament
on the Classified Information which would regulate the judicial
review of the classification, and this process would be available
for every citizen. (Under the current rules, only the Date Commissioner
has power to review the classification.) However, the proposed
institution of the judicial review of the classification has
several weaknesses: most importantly, the petitioner has to name
the exact document which contains the classified data. This is
nearly impossible task, as the petitioner can not get access
to such documents. Concerning the minutes of the government meetings,
it would adopt a radical solution: every documents related to
governmental meeting, such as records and summaries, would be
barred from the public as it would encrypted automatically for
25 years. This is a clear sign on the intention of the government
to adopt new and very secretive laws.
HCLU waits the written judgment and will then decide whether
to turn to the Supreme Court for extraordinary remedy or to the
Constitutional Court with a constitutional complaint.
Hungarian Civil Liberties Union (link)
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