Polish NGOs Sound the Alarm Over New Draft Law on Public Transparency

In response to the Polish government's new draft law on the transparency of public life, a coalition of over 20 Polish NGOs has presented the key problems with this legislative proposal.

Public information: persistent confidentiality

The draft law introduces yet another possibility to restrict the right to information: a public body may refuse to disclose information on the grounds that the application has been filed "persistently" and that its admission would "materially hinder the operations of an entity obliged to disclose information".

Public information: pay first, access later

The draft law provides for an opportunity to make a disclosure of public information conditional on the payment of a "preparation fee". It is possible to request a fee for a disclosure of information under current law but a failure to pay or a challenge against the amount of the fee does not result in withholding disclosure. After the proposed changes enter into force, a request for the payment of the fee will be just another way to deny a disclosure application.

Property statements: full disclosure

The newly proposed law expands the category of persons who are legally obliged to submit property statements and requires that all statements (save for those submitted by officers of secret services) be published online. This rule is to apply not only to Sejm deputies and local government officials but also driving test examiners, municipal police officers, personnel of the National Labour Inspectorate and State Treasury Solicitors’ Office, professional civil servants, and even the firefighters and support staff of the National Fire and Rescue Service.

Administrative proceedings: privacy not protected

In accordance with the law currently in force, an administrative body may refuse to disclose public information due to the need to protect someone's privacy. The proposed law limits this basis for a refusal in administrative proceedings. Under the new law, records of administrative proceedings, and especially administrative decisions will become public information accessible in the public information disclosure proceedings.

Legislation: less transparency and openness

The draft law does not introduce any new mechanisms for maintaining the transparency of the lawmaking process. To the contrary, it lowers currently applicable standards. For public consultations, the newly proposed law repeats the contents of the binding resolution on the works of the Council of Ministers. However, unlike the resolution, it does not designate a time limit for the submission of opinions or complaints. The CoM resolution mentions a 14-day period, which may be shortened in extraordinary circumstances. The draft law sets out no time limit whatsoever.

Lawmaking and lobbying

Following the footsteps of the currently applicable Lobbying Act, the draft law provides for two forms of citizens’ participation in lawmaking: lobbying and professional lobbying. However, unlike the current law, the draft imposes hefty disclosure obligations on certain entities, such as organisations, institutions or persons interested in legislated laws (but not companies of enterprises). A failure to make such disclosure is to be a criminal offence. The absence of any of such information invalidates the right to present an opinion statement.

Whistleblowers: distortion of key concept

The draft law awards the status of a whistleblower only to persons who report a suspicion of a corruption offence to law enforcement authorities. This status is awarded and lifted by an arbitrary decision of a prosecutor, which means that a whistleblower’s fate is in the hands of a prosecutor only. If a prosecutor denies protection to a whistleblower, the latter has no legal option to appeal such a decision. The new law provides no protection for persons reporting threats that are not considered criminal offences such as safety at work risks, mobbing or sexual harassment.

Transparency law created in nontransparent manner

The draft law, prepared by the coordinator of special services, was worked on for months without the publication of any policy papers. It never appeared on the official list of legislative works. It was revealed on October 24, 2017, and public consultations are to take 6 working days, and the law is to enter into force as soon as January 1, 2018. Contrary to official announcements, the public consultations were superficial, illusory and rushed.