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In re Constitutionality of Acts LXIII of 1992 and LXV of 1995

last modified Aug 21, 2012 12:46 PM

Case number:
12/2004 (IV. 7.) AB
Country:
Hungary
Date of decision:
6 April 2004
Court / Arbiter:
Constitutional Court, unreviewable ( Constitutional )


Decision:

Information created for internal use and in connection with the preparation of decisions could be withheld but only if legislation were amended to provide sufficient guarantees against abuse, namely, to ensure that access should not be restricted after a decision has been made, there must be an opportunity to challenge a decision to withhold information on the merits as well as on procedural grounds, the period for restriction must be limited, and the law must clearly define the restricted category of information.


Keywords:
Constitution
Judicial review (including access to courts)
Legislature / Parliament (including committees, individual legislators)
Policy formulation (including draft documents)
Scope of information covered
Security sector (including intelligence bodies, military, police)

Case details:

Facts

The petitioner requested the annulment of two provisions of law on the ground that they violated Article 61(1) of the Hungarian Constitution, which guarantees the right to “distribute information of public interest,” and Article 8(2), which provides that a law “may not restrict the basic meaning and content of fundamental rights. He asserted that: (1) Section 4(1) of Act LXV on State Secrets and Official Secrets, which defines an official secret as “information that has been classified as such by those [bodies] with the authority to do so,” makes classification discretionary and does not provide sufficient guarantees to prevent unjustified restrictions on the freedom of information; and (2) Section 19(5) of Act LXIII, which states that “information created for internal use and in connection with the preparation of decisions” is not to be disclosed for twenty years “following its handling,” unless a request to that effect is approved by the head of the organ concerned, could be used to prevent the publication of any information and that the time restriction on publicity was unjustifiably excessive.

Decision

The Constitutional Court rejected the petition to declare unconstitutional and annul these provisions. The Court found the Act LXV provision constitutional as it was limited in scope, applying only to the narrow category of “official secrets”; there are sufficient procedural guarantees to prevent discretionary classification; and judicial review of a non-disclosure decision was available (section III, para. 3.2).

However, the Court found that Act LXIII lacked certain guarantees necessary to protect the right of access to information and therefore called on the legislature to remedy the situation by adding new provisions to the law.

In particular, the Court found the so-called automatic restriction of publicity (the referenced Act LXIII provision) could be constitutional “under appropriate (constitutional) statutory conditions” as a proportionate restriction of freedom of information since it prevents public officials from having to work under an “unbearable administrative burden” (section III, para. 3.1.). However, the Court found that this provision lacks sufficient guarantees against abuse in four ways. First, it unnecessarily restricts a fundamental right as it provides an opportunity to refuse access to information after a decision has already been made. Second, the provision does not provide a sufficient mechanism for a legal remedy as judicial review only permits review of procedural, and not substantive, issues. Third, the provision improperly provides for an indefinite restriction, as storage also constitutes “handling of information,” and the act forbids disclosure for twenty years “following handling.” Finally, the conceptual vagueness of the information subject to restrictions – “information created for internal use and in connection with the preparation of decisions” – permits the arbitrary denial of access to public information (section IV, para. 2).

Resources:

Judgment of the Court (in English).