The Hungarian Civil The Hungarian Civil Liberties Union’s FOI Liberties Union’s FOI

lawsuits lawsuits

Ádám FöldesÁdám Földes

HCLUHCLU

Legal backgroundLegal background

Protection of Personal Data and the Protection of Personal Data and the Freedom of Information Act Freedom of Information Act

The Constitution of HungaryThe Constitution of Hungary Parliamentary Commissioner of Data Parliamentary Commissioner of Data

Protection and Freedom of Protection and Freedom of Information („Ombudsman of Data Information („Ombudsman of Data Protection”)Protection”)

Electronic Freedom of Information Electronic Freedom of Information ActAct

Data Protection and FOI ActData Protection and FOI Act::

One integrated Act on Data Protection and One integrated Act on Data Protection and on FOI since 1992on FOI since 1992

Regulates both sides of Informational Regulates both sides of Informational RightsRights

Broad definition of Public Interest Broad definition of Public Interest Information: everything, which is related Information: everything, which is related to some public-funded activity or some to some public-funded activity or some public-funded institution is Public Data, public-funded institution is Public Data, except the information which is personal except the information which is personal datadata

ConstitutionConstitution

„„AnybodyAnybody has a right to get and has a right to get and desemimate Public Data”desemimate Public Data”

The Constitutional Court’s practice The Constitutional Court’s practice defines the FOI issue as the defines the FOI issue as the backbone of an open societybackbone of an open society

FOI can be narrowed FOI can be narrowed only only because of because of the protection of another basic the protection of another basic constitutional rightconstitutional right

OmbudsmanOmbudsman

For Data Protection and FOI issuesFor Data Protection and FOI issues One General Ombudsman, one One General Ombudsman, one

Deputy Ombudsman, one for the Deputy Ombudsman, one for the rights of ethnic minorities, one for DP rights of ethnic minorities, one for DP and FOI. and FOI.

2 equally important rights, but! 90 % 2 equally important rights, but! 90 % of complaints are related to data of complaints are related to data protection, and only 10 % related to protection, and only 10 % related to FOIFOI

HCLU’s Strategic Litigation ActivityHCLU’s Strategic Litigation Activity

HCLU: founded in 1994HCLU: founded in 1994 Focuses on the following issues: drug Focuses on the following issues: drug

policy, HIV/AIDS, data protection and policy, HIV/AIDS, data protection and FOI, freedom of assembly, speech, FOI, freedom of assembly, speech, opinion, NGOs in the legislationopinion, NGOs in the legislation

Uses SL as a tool in the issues aboveUses SL as a tool in the issues above

Electronic FOI LawElectronic FOI Law

Existing since the summer of 2005, the law will Existing since the summer of 2005, the law will come intocome into effect from the 1st of January effect from the 1st of January 2006 and some parts, 1st of January 2007.2006 and some parts, 1st of January 2007.

Public institutionsPublic institutions must publish their must publish their documents and relevant Public Data on documents and relevant Public Data on the Internet the Internet

DecisionsDecisions of higher courts on the Internet of higher courts on the Internet BillsBills and propositions on the Internet and propositions on the Internet Biggest weakness: no motivation, no Biggest weakness: no motivation, no

sanctions in the lawsanctions in the law

FOI lawsuitsFOI lawsuits

Before a lawsuit, we always issue a Before a lawsuit, we always issue a FOI request, based on the DP and FOI FOI request, based on the DP and FOI Act. The law gives 8 days for the Act. The law gives 8 days for the negative, and 15 days for the negative, and 15 days for the positive answer from the approached positive answer from the approached authorityauthority

Requests: we test the email and regular mail Requests: we test the email and regular mail ways of the request. ways of the request.

We select possible respondents for our SL We select possible respondents for our SL activity: in 2005, we issued lawsuits against the activity: in 2005, we issued lawsuits against the Ministry of Health, Ministry of Justice, local Ministry of Health, Ministry of Justice, local governments, police authorities, specific state-governments, police authorities, specific state-funded institutions (e.g. The National Nuclear funded institutions (e.g. The National Nuclear Safety Authority)Safety Authority)

The lawsuits usually related to our focus areas – The lawsuits usually related to our focus areas – Multiple Box Case ManagementMultiple Box Case Management

But we also help and represent other NGOs in FOI But we also help and represent other NGOs in FOI lawsuits for free.lawsuits for free.

We also test FOI cases countrywide: We also test FOI cases countrywide: we issue the same lawsuits against we issue the same lawsuits against different local governments or police different local governments or police authorities, to test the court system authorities, to test the court system and to see the differences in the and to see the differences in the application of the law at the various application of the law at the various courts.courts.

Lawsuits related to HCLU’s Street Lawsuits related to HCLU’s Street Surveillance Cameras ProjectSurveillance Cameras Project

FOI requests (based on the FOI Act) to FOI requests (based on the FOI Act) to local governments and police authorities local governments and police authorities from February 2005from February 2005

Questions: number of CC cameras, Questions: number of CC cameras, possible studies, costs, operational detailspossible studies, costs, operational details

Few answers, most of the approached Few answers, most of the approached institutions responded negatively, less institutions responded negatively, less than 10 % gave out the requested than 10 % gave out the requested informationinformation

HCLU selected 3 local governments, and HCLU selected 3 local governments, and one police institution (the Budapest Police one police institution (the Budapest Police Headquarters), and filed FOI lawsuits Headquarters), and filed FOI lawsuits aginst them. We selected different towns aginst them. We selected different towns in the countryside and one Capital district.in the countryside and one Capital district.

We started the cases with exactly the We started the cases with exactly the same statement of claims and with the same statement of claims and with the same same causacausa. We used the same legal . We used the same legal reasoning.reasoning.

Same claims - different court Same claims - different court decisionsdecisions

Despite the fact that all 4 cases were Despite the fact that all 4 cases were similar, and our petitions were also similar, and our petitions were also similar, the courts’ decisions were similar, the courts’ decisions were different.different.

FOI lawsuits must be fast tracked– FOI lawsuits must be fast tracked– but in one case, we were waiting 9 but in one case, we were waiting 9 weeks for the first hearing.weeks for the first hearing.

Finally we won 3 cases from the 4. These 3 Finally we won 3 cases from the 4. These 3 courts decided that our requests were courts decided that our requests were well-grounded.well-grounded.

The 4th court decided differently, the The 4th court decided differently, the judge’s opinion was the following: there is judge’s opinion was the following: there is no need for a trial, because our request is no need for a trial, because our request is not an FOI request –HCLU appealednot an FOI request –HCLU appealed

Question of enforcement: one local Question of enforcement: one local government still did not provide the data – government still did not provide the data – despite the lost case, so we are waiting for despite the lost case, so we are waiting for the bailiff’s procedure.the bailiff’s procedure.

The issue of deadlinesThe issue of deadlines

Fast tracked proceedings in theory, Fast tracked proceedings in theory, several months waiting in practiceseveral months waiting in practice

CC-case vs. ANS-case: 2 different cases, CC-case vs. ANS-case: 2 different cases, one court, same reasoning and one court, same reasoning and causacausa, , same legal regulation, the action in laws same legal regulation, the action in laws arrived at the same time to the court. The arrived at the same time to the court. The 1st case’s 1st hearing was scheduled in 1st case’s 1st hearing was scheduled in one month, the 2nd case’s 1st hearing was one month, the 2nd case’s 1st hearing was scheduled 7 months later (The law says 6 scheduled 7 months later (The law says 6 months in normal cases!)months in normal cases!)

The CC-caseThe CC-case Probably the most important FOI lawsuit in the past year: Probably the most important FOI lawsuit in the past year:

HCLU sued the Hungarian Constitutional CourtHCLU sued the Hungarian Constitutional Court CC would not provide a petition that an MP had made, the CC would not provide a petition that an MP had made, the

denial’s justification was this: „we usually don’t do this” (!)denial’s justification was this: „we usually don’t do this” (!) We lost the case at the first level: the petition of an MP, We lost the case at the first level: the petition of an MP,

which aims to change the Criminal Code is „not data”.which aims to change the Criminal Code is „not data”. We lost it on the 2nd level: an MP’s petition is data, but We lost it on the 2nd level: an MP’s petition is data, but

because of the „style of his argumentation” it is his because of the „style of his argumentation” it is his personal data.personal data.

We took the case to Strassbourg, and are currently waiting We took the case to Strassbourg, and are currently waiting to see if the Court accepts the case or not.to see if the Court accepts the case or not.

None the less we lost the case, the CC None the less we lost the case, the CC lawsuit was a good example of SL: during lawsuit was a good example of SL: during the trial period, the Parliament changed the trial period, the Parliament changed the DP and FOI Act. Thanks to our case, the DP and FOI Act. Thanks to our case, the new version of the law includes the new version of the law includes

1.1. better definition of public databetter definition of public data2.2. Regulation on the ‘public actor – personal Regulation on the ‘public actor – personal

data’ question.data’ question.

Thank you!Thank you!