Trust – Judicial Transparency 

National Court

Naczelny Sąd Administracyjny  

Supreme Administrative Court 

I OSK 4282/18

June 28th, 2018

Not available 

NO

Public information – refusal of making public information available – recommendation for candidates to NCJ 

Trust in the judiciary. 

The way the candidates to NCJ were chosen. Recommendation letters as public information. 

NO 

Constitution;

Act on National Council of Judiciary;

Act on Access to Public Information;

Act on Personal Data Protection

The election of 15 members of the NCJ judges for a joint four-year term of office by the Sejm (parliament) was carried out in accordance with the amendment to the Act on the National Council of Judiciary, which entered into force in mid-January 2018. 

Earlier, they were elected by their judicial circles. The entities entitled to propose candidates to the NCJ were groups of 25 judges and groups of at least two thousand citizens. In the second half of February 2017, the Sejm's Information Centre provided a list of 18 proposals of candidates for the NCJ.

The Chancellery of the Sejm received, among others, applications from politicians and social organizations for information about names, surnames and places of judging of judges, who supported applications of candidates to the NCJ. The Head of the Chancellery of the Sejm refused to make this information available to all applicants.

The refusals referred, among other things, to the provision of the Act stating that the candidates' applications made in accordance with the Act 'The Speaker of the Sejm shall immediately forward to the MPs and make them public, excluding attachments', i.e. a letter of 25 judges supporting individual applications. Refusal decisions were appealed to the administrative court.

The Higher Administrative Court has already ruled on similar cases several times. In all cases the court overturned the decision of the Chancellery of the Sejm refusing to provide access to lists of support for candidates to the NCJ. These rulings were not valid. 

Quoted SAC verdict is the first final decision in this case.

“In the reality of this case, however, it is worth emphasizing that since, according to Article 61, paragraph 1 of the Constitution of the Republic of Poland, the "right to obtain information" referred to in this regulation is the right to information about, among other things, "the activities of public authorities and persons performing public functions", there is no doubt that information about the activities of the state represented by its duly authorized bodies undertaken with the participation of judges, i.e., the "right to obtain information". 

The information about the activities of the State represented by its duly authorised bodies, which are undertaken with the participation of judges, i.e. persons performing specific public functions related to the administration of justice and therefore enjoying a guarantee of independence and sovereignty, which are aimed at the emergence of a constitutional body, i.e. the National Council of the Judiciary, constitutes public information within the meaning of Article 2 of Constitution.  

In addition, since in accordance with Article 61(1) of the Constitution of the Republic of Poland in conjunction with Article 1(1) of the Act of Access to Public Information, the National Council of the Judiciary constitutes public information within the meaning of Article 61(1) of the Constitution of the Republic of Poland in conjunction with Article 1(1) of the Act of Access to the public information. In addition, since in accordance with Article 61, paragraph 1 of the Constitution of the Republic of Poland, public information is information on the activities of public authorities and persons performing public functions, as well as on the activities of economic and professional self-government bodies, as well as other persons and organisational units to the extent to which they perform the tasks of public authority and manage municipal property or State Treasury assets, the concept of public information should be directly connected with the performance of public tasks by its administrators (which is directly indicated by the content of Article 4, paragraph 1 of the Act on Public Procurement). The performance of public tasks is in essence directed at the achievement of public objectives, and the axiological justification for the creation of the right of access to public information by the legislator in the legal order is to ensure openness and transparency of public life as a standard of a democratic legal state (Article 2 of the Constitution of the Republic of Poland). Therefore, the normative category of public information is based on values related to the performance of public tasks, and thus to the implementation of broadly understood public objectives. It is worth noting that in the case law of the court-administrative court it has been assumed that the results of the linguistic, purposeful and systemic interpretation of Article 61(1) and (2) of the Constitution of the Republic of Poland lead to the conclusion that the right to public information is the right to information about the activity of the entities indicated in the Constitution of the Republic of Poland, i.e. about such activity of these entities which is directed (and thus directly directed) to perform specific public tasks and pursue specific public interests and objectives (see judgments of the Supreme Administrative Court: of 3 March 2017, ISK 1163/15; of 17 March 2017, ISK 1416/15; of 24 January 2018, ISK 319/16; of 8 February 2018, ISK 1828/17). Therefore, there should be no doubt that the information about the activity of specific judges as public officers, aimed at selecting, within the framework of the statutory procedure, a specific constitutional body, i.e. the National Council of the Judiciary, and determining to a significant extent the composition of this body, is public information, i.e. information about the activity of the entity (or entities) carrying out this procedure, and such information which is not covered by the standards of a democratic state governed by law or otherwise made secret. The above position is also based on the statutory understanding of "public information" resulting from art. 1.1 and art. 6 of the Act on access to public information, where it is indicated that such information is any information on public matters, and in particular on matters listed in art. 6.1 and 6.2 of the Act of  access to public information.  

Final remark, just in case: “The physical absence of a document, the content of which must have been known to the authority in order to carry out a statutory procedure and which the legislator has given substantial weight to the resolution of a public matter, does not automatically exclude the possibility of making available public information constituting the content of that document”.

Not invoked  

Not applicable 

Not applicable 

The idea was (presumably) to solve the institutional conflict of two powers (legislative vs. judiciary). 

Template #8 

http://orzeczenia.nsa.gov.pl/doc/EA1208209B 

Jarosław Gwizdak INPRIS

1. Recommendations for the judges - candidates to NCJ;
2. Election of new NCJ;
3. Requests from CSOs, politicians to reveal the names;
4. Refusal of Chancellery of Parliament;
5. Higher Administrative Court judgment; 
6. Appeal of Chancellery of Parliament;
7. SAC judgment.