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Gergely v. Ministry of Development and Economics ("the Gripen case")

last modified Aug 21, 2012 12:45 PM

Case number:
2.Pf.20.708/2008/7
Country:
Hungary
Date of decision:
9 September 2008
Court / Arbiter:
Regional Court of Appeals ( Appellate )


Decision:

The Ministry of Defense, as an organ performing state functions, is obliged to disclose a list of deliverables, determined in the framework of an offset agreement between Hungary and Sweden. The fact that the overall offset procedure has not been finalized does not mean that all related documents were preparatory documents. RTI law overwrites private agreements on non-disclosure.


Keywords:
Burden of proof (including requests for additional evidence)
Commercial confidentiality (including financial/economic interests of private parties or public authorities)
Contracts / Agreements (use of public funds, negotiations)
Harm (including harm to legitimate interest, harm test)
Private entities (including entities that perform public functions or receive public funds, entities that manage privatized assets, state owned enterprises)
RTI law

Case details:

Facts

In 2001, the Hungarian Air Force decided to lease Swedish Gripen-jets in the framework of an offset agreement. According to this agreement, Swedish companies had to make investments in Hungary in the amount of 800 million EUR in exchange for the lease. Dr. Zsófia Gergely, a journalist, requested a list of the offsets approved by the Gripen Offset Committee, but the Hungarian Ministry for Development and Economy rejected her request, denying the public nature of the information requested and referring to the commercial secrets exemption. The first instance court held that the requested list constituted public information, did not harm commercial interests, and ordered disclosure. The court also ruled that it could judge solely those arguments that the Ministry enumerated in the rejection letter. The Ministry appealed the case.

Decision

The Regional Court of Appeals agreed with the Ministry that during appeals proceedings over the denial of an information request, the court needs to examine not only the reasons enumerated in the rejection letter but also all the arguments the defendant presented during court proceedings. It also held that the burden of proof lies with the organ handling the information.

The court noted that the lease agreement for the Gripen-jets was signed by the Ministry of Defense (representing the Hungarian government) as well as a Swedish state-run company (representing the Swedish government). The court found that, pursuant to the RTI Act, the requested information qualified as “public information” and the Ministry as a “data controller” because (a) the offset agreement was directly related to the lease agreement, which was funded by public money, and (b) the Ministry clearly is an organ that performs state functions.

Moreover, the court rejected the Ministry’s claim that the requested documents comprise preparatory documents created during the decision-making process, in which case the RTI Act would have permitted their non-disclosure for up to 10 years or their release solely on a discretionary basis. The court noted that the information the journalist requested was related to already approved and final decisions—in several cases fulfilled deliverables—not preparatory documents. The fact that the overall offset procedure had not been finalized did not mean that no final decisions had been made in cases of already approved offsets. As a result, disclosure of the requested information could not be discretionary.

Lastly, the court was not receptive to the Ministry’s argument that the deliverables were based on agreements between private parties and thus contained commercial secrets. The court held that the fact that the parties agreed on non-disclosure did not in itself make withholding of information lawful. Because the Ministry failed to prove that the rejection of information was lawful and well-founded, the court ordered disclosure.

Resources:

Judgment of the Court.