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The information was first reported on Twitter by Mirosław Wróblewski, director of the office of the Commissioner for Human Rights. He wrote: “On Feb. 16, the Chief Justice of the Supreme Court formally requested that the Supreme Court declare the Access to Public Information Act K 1/21 unconstitutional in such a broad way, that I will not be surprised if this date will be remembered as the end of government transparency”.
In her request, dated February 16, 2021, the Chief Justice of the Supreme Court Małgorzata Manowska questions the meaning of such terms as "public authorities", "other entities performing public tasks", "persons exercising public functions" and "the relation to the exercise of public functions".
Ms. Manowska argues that they "unjustifiably broaden the scope of potential entities obliged to provide access to public information".
Moreover, the Chief Justice claims that obligating authorities to provide access to information about public figures, "including their personal data and information belonging to their private sphere," makes the provisions of the Access to Public Information Act inconsistent with the Constitution, but also with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
„Governmental transparency under assault"
The request caused a wave of indignation among legal experts. "By the way, it’s unbelievable that it is precisely the Supreme Court asking the Constitutional Court to bar access to information about the activities of public institutions and people whose work is being paid for with public funds" - tweeted Krzysztof Izdebski, board member and policy director of the ePaństwo Foundation. "But there it is. Another attack on governmental transparency. A particularly dangerous one."
“We should soon expect requests from public institutions that have been 'taken' to court for not releasing public information to suspend the proceedings until the Constitutional Court issues its formal decision”- he added.
“This request is also intended to produce a CHILLING EFFECT on citizens and journalists"
At the same time, Mr. Izbebski recalled this is not the first time the Supreme Court is reaching for such measures. "In 2013, Chief Justice Dąbrowski formulated a similar request and Chief Justice Gesdorf has upheld it for many years. She withdrew it only after the changes within the Constitutional Court. You guys at the Supreme Court aren’t big fans of the idea of transparency, are you?".
It is not the first such request
Indeed, in November 2013, Supreme Court Chief Justice Stanisław Dąbrowski requested that the Constitutional Court examine whether the Access to Public Information Act does not violate the constitution.
Both the Parliament and the Prosecutor General called on the Constitutional Court to declare the challenged act legitimate, but the Court itself did not address the request. When judges from the ruling Law and Justice Party (PiS) party took over the Constitutional Court, a hearing was scheduled for early May 2017.
In April 2017, the Citizens' Network Watchdog Poland appealed to the Supreme Court’s Chief Justice Małgorzata Gersdorf to withdraw the motion, pointing out that "in the current situation, the Court's judgment on the constitutionality of the law may open the door for potential changes limiting the possibility to exercise control over activities of public authorities."
Ultimately, Ms. Gersdorf followed the appeals and withdrew the motion from the Court. The Supreme Court justified its decision by referring to a "clear line of rulings of the Supreme Administrative Court adjudicating on the matter”.
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