In May, after 3.5 years, a final judgment was passed regarding the openness of the register of civil law contracts concluded by the Polish National Foundation. Now, six months later, the organization has referred to him. However, according to experts, he does not comply with the court’s judgment and he is playing for time.
Public opinion has not yet learned about the register of civil law contracts established at the turn of 2016 and 2017 of the Polish National Foundation. In May 2021, a final judgment of the Supreme Administrative Court was passed in this case. The journalist Konkret24 Jan Kunert filed a complaint against the organization. Now, in November, he got the first letter from PFN after the May verdict in which the organization refers to him.
Let us remind you that since September 2017, the journalist has been trying to find out to whom, how much and for what the Foundation is paying, due to its use of public funds. He then asked her to scan the register of signed contracts. The organization refused. So the journalist went to court. He did not agree with the Foundation’s position at first April 10, 2018 Provincial Administrative Court in Warsaw, and then May 18, 2021 – already legally valid – Supreme Administrative Court.
During this case (and also in others), the Foundation presented similar arguments. She claimed, inter alia, that it is not an entity obliged to provide public information but a private entity, it does not have public funds, the information requested is an entrepreneur’s secret and the requested register simply does not have.
NSA: PFN is an administrator of public funds obliged to provide information
In a judgment issued in May, the Supreme Administrative Court stated that the Foundation had insufficiently assessed and then showed that the information requested by Jan Kunert was an entrepreneur’s secret.
The Supreme Administrative Court also referred to the sources of funding for the Foundation. He stated that PLN 97.5 million was allocated to the implementation of the PFN goal under the Founding Fund from the founders – companies controlled by the State Treasury, which then make annual contributions to the Foundation’s statutory activities until 2027. According to the court, “this proves the involvement of public funds in the Foundation’s capital, and hence – the manner of its use cannot be excluded from social control.”
Summing up, the Supreme Administrative Court stated that “the Foundation, as the administrator of public funds transferred by 17 companies in which the State Treasury has a dominant position, is an entity obliged to disclose public information”.
PFN does not disclose the registry
In the letter sent to the journalist at the end of October, PFN did not provide the information he requested. He asks, however, whether the journalist upholds his motion from September 2017 because – according to the Foundation – the information the editor is asking for is the so-called processed information (i.e. the data has yet to be collected and combined), called on him to demonstrate the public interest, i.e. to demonstrate that disclosure of the register of contracts would be important to the public.
In addition, PFN reserves that due to the pandemic and the sanitary regime, it may consider the matter for longer – up to 2 months. Finally, he mentions that there are “constitutional doubts” regarding Art. 4 (1) of the Act on Access to Public Information, i.e. the basis on which – in the opinion of administrative courts – PFN is required to provide information. This is a reference to the upcoming ruling of the Constitutional Tribunal, to which we will come back later.
NSA: “PFN has a list of concluded contracts”
In the letter, PFN emphasizes that “it does not have a register of civil law contracts containing the requested information and, if the application is upheld, it considers issuing an appropriate decision”. The Foundation does not specify what the “appropriate” decision means or whether it is a refusal to provide information.
Meanwhile, in the justification of its judgment, the Provincial Administrative Court indicated that the Foundation provided a list of “contracts concluded until September 8, 2017, containing the name of the company and its address as well as the date of the contract. The Foundation did not explain whether the register of civil law contracts is kept in this version, or this list was drawn up solely for the purposes of these court proceedings. If the Foundation maintains the register in the version submitted to the Court, it should make it available to the complainant (journalist – editor) in this version “.
He wrote similarly in the justification of the Supreme Administrative Court. In his opinion, “the Foundation’s claim that it did not have the register referred to in the application (journalist – ed.) Raises doubts in the light of the fact that PFN submitted a list of contracts concluded by it”. And further elsewhere: “PFN has a list of concluded contracts”.
Experts: stalling, slap on citizens and the state
We showed the magazine to experts who have been dealing with access to information for many years. They believe that PFN is not complying with the court’s judgment. – The letter sent directly states that the Foundation’s management board does not recognize the final decision of the Supreme Administrative Court – says Dr. hab. Michał Bernaczyk, professor at the Department of Constitutional Law at the University of Wrocław. – During the fifteen years of my academic and legal counsel work, I have seen hundreds, if not thousands, of similar writings, often written in an arrogant tone, but I do not recall a public institution opposing a final decision. This proves a high level of self-confidence, albeit unjustified by the applicable law – he adds.
Krzysztof Izdebski, an expert of the Fundacja im. Stefan Batory and Open Spending EU. – The letter she handed over to PFN is nothing more than a slap in the face of citizens and the state. The authors of the document, in an inconsistent and contradictory manner, de facto announce that, despite their victory in court, they will not provide information on the public funds they have spent. The lack of courage in being transparent and taking responsibility for one’s decisions explains, among others, the fact that the requested information constitutes processed information – says the expert in an interview with Konkret24. He believes that the PFN’s letter is not the execution of the sentence, but only a search for an excuse not to provide information.
November 17. The end of the right to public information in Poland?
Both experts we interviewed believe that with this letter PFN is dragging the case. According to dr hab. Michał Bernaczyk, a statement in the letter that the Foundation must create the requested information as the so-called the processed information looks like a “typical stalling game”. Izdebski, in turn, perceives the argument about the epidemic as “another form of escape from the execution of the sentence”.
Why is time so important in this case? Both experts point out that on November 17 the Constitutional Court has set a date for a hearing regarding the application submitted by the first president of the Supreme Courtin which it questioned a number of provisions on access to public information and asked the Constitutional Tribunal to declare them unconstitutional. It goes, among others about art. 4 sec. 1, pursuant to which – according to administrative courts – PFN is obliged to provide information.
In six allegations, Małgorzata Manowska challenges, inter alia, the provisions of the Act on access to public information, which do not specifically define the terms: “public authorities”, “other entities performing public tasks”, “persons performing public functions” and “connection with the performance of public functions”. According to the first one, the President of the Supreme Court claims that these provisions illegally broaden the understanding of entities that are obliged to disclose public information.
The verdict may be handed down on November 17. Can it affect the disclosure of the register of civil law contracts signed by the PFN? – If the Constitutional Tribunal shares the charges of the first president of the Supreme Court, who herself has serious problems with being open to the Supreme Court, it will mean the end of the right to public information in Poland – there is no doubt that Dr. Bernaczyk and recalls another decision of the Constitutional Tribunal regarding the openness, which it considers to be very harmful. – In December 2018, the Constitutional Tribunal of Julia Przyłębska recognized the provision concerning the so-called information processed in accordance with the Constitution, despite the fact that from the constitutional point of view, the list of objections is still very long. The Tribunal, however, acted as a protective umbrella for the authorities. After his sentence, public institutions’ reliance on this premise increased exponentially – he notes.
– In just a few days, the apparatus of power will be deactivated via the Constitutional Tribunal Polish National Foundation and similar institutions from the group of entities obliged to provide information, and people who receive funds through them will no longer have to worry that the public will find out about it – predicts Izdebski.
Main photo source: TVN24