Wróblewski tweeted information about Manowska’s motion on the evening of 24 February 2021. The Commissioner fo Human Rights received a copy of this document ex officio. It is not yet on the Supreme Court’s website or the Constitutional Tribunal’s website.

In it, the First President of the Supreme Court is asking Julia Przyłębska’s Constitutional Tribunal to examine the provisions of the Act on Access to Public Information. The Act specifies the principles on which citizens may demand knowledge about the activities of the state authorities.

On 32 pages of her motion, the First President of the Supreme Court alleges, among other things, that the act

• inadequately defines what ‘public authorities’, ‘other entities performing public tasks’ and ‘persons performing public functions’ are, and what the ‘relationship with the performance of public functions’ involves;
• imposes the obligation to provide information on persons ‘performing public functions, which are related to the performance of those functions, including the conditions on which the functions are entrusted and performed’, thereby breaching their right to privacy and personal data protection;
• does not provide for the ability to verify the purpose for which a person is requesting access to data.

Manowska considers that such provisions are unconstitutional and asks that the Constitutional Tribunal confirms that.

‘On 16 February, the First President of the Supreme Court filed a motion with the Constitutional Tribunal to declare the Act on Access to Public Information, K 1/21, unconstitutional to such an extensive degree that I will not be surprised that this date will be remembered as the end of the transparency of the public authorities,’ Mirosław Wróblewski wrote on Twitter.

Less information about the activities of the state

Krzysztof Izdebski – a lawyer, programme director of Fundacja ePaństwo [eState Foundation] and an activist for transparency in the operation of the authorities – points out that the First President’s accusations are primarily intended to reduce the number of institutions that should make information available to citizens.

‘Perhaps this is about excluding quasi-government agencies or state-owned companies from this group. Those that are not always directly related to public money, but perform public tasks and have an impact on how public life looks,’ says Izdebski.

Secondly, Małgorzata Manowska argues that she wants to protect the privacy of officials and the people who work with them. However, according to Krzysztof Izdebski, there is already insufficient transparency in this respect.

According to the president of the eState Foundation, there can also be no question of breaching the provisions of the GDPR. ‘When we were implementing this directive, there was a discussion and it was stated that people performing public functions have a limited right to privacy. The provisions of the GDPR themselves specify that they cannot affect access to public information,’ Izdebski emphasizes.

The First President’s allegation that offices cannot check the purpose for which the applicant is asking for the information in question is particularly questionable.

‘This contradicts the whole idea of the right to information. It should not matter what I do with this information next. If the law changes, it will be possible to assess which purposes are legitimate and which are not. In other words, to stretch the limits’, Izdebski laments.

Chilling effect as early as at the stage of filing the motion

An extensive justification was attached to the motion. However, according to Krzysztof Izdebski, President Manowska does not mention in it the general, systemic problems with the application of the Act.

‘Instead, she cites anecdotal stories. This is reminiscent of 2013, when the First President of the Supreme Court, Stanisław Dąbrowski decided to crack down on this Act because he was losing cases on access to public information,’ says Izdebski.

Dąbrowski’s successor, First President Małgorzata Gersdorf, finally withdrew Dąbrowski’s motion from the Constitutional Tribunal only after PiS started to take over the Constitutional Tribunal. However, the document managed to create a chilling effect.

‘When it appeared in 2013, many offices started to ask the administrative courts to suspend proceedings until the Court settled the case. Some courts recognized this and postponed cases for two to three years. Even if the office ultimately had to make the given information available, it was often too late,’ recalls Krzysztof Izdebski.

In his opinion, President Manowska’s motion will also lead to restricting information about the activities of offices and people who take part in the legislative process. As well as about possible irregularities, such as the use of public assets for private purposes.

‘Citizens, journalists and public opinion will suffer from these changes in the short term. In the long term, the state and public institutions will suffer. Access to information is about making offices work efficiently. It will now be easier to sweep their problems under the carpet, but this will not make the problems disappear. On the contrary, they will grow,’ Izdebski laments.

The authorities are counting on secrecy

This is not the first time that the authorities are trying use the politicized Supreme Court and Constitutional Tribunal to force through solutions that are advantageous for them. President Manowska’s motion may open the door to further restrictions on the civic right of access to information about the actions of the authorities.

Two bills were processed at the session of the Sejm on 24–25 February 2021, which significantly reduce this right:

• the amendments to Article 156 of the Criminal Procedures Code, which will make it more difficult for the public to receive access to the files of investigations that have ended in the prosecutor’s office, because they will rule out the possibility of invoking the Act on Access to Public Information – the prosecutor will then make the decision;
• a new Act on the foreign service, in which the PiS government is introducing the category of ‘diplomatic secrecy’allowing officials – on any grounds – not to provide information on the activities of the Ministry of Foreign Affairs and related institutions.

‘As can be seen, there are numerous ideas for restrictions. The opening of the Act on Access to Public Information can mean that many more will appear,’ warns Krzysztof Izdebski.

President Manowska’s motion can result in some abuses of power being removed from the scope of the Act on Access to Public Information and never seeing the light of day.