Towards the Dismantling of Freedom of Information in Hungary

Vyhľadávanie v online časopise

In this article we aim to illustrate how the Hungarian government uses the public Law mandate to invoke pandemics, war in the neighbourhood or even the refugee crisis as a pretext to restrict public spaces and to block data on government operations and budgets. The example of Hungary illustrates the danger of what happens when a fundamental right that was institutionally guaranteed, namely the freedom of information (FOI) - which makes public life, public finances and public decisions transparent -, deteriorates. The erosion of freedom of information not only lead to the derogation of a fundamental right, but may also contribute to the opacification of the functioning of the state, which leads to the regression of public debates, declining control of public affairs, and ultimately leads to the eradication of the constitutional rule of Law. This article covers legal developments in the area of freedom of information in the recent decade, however, the content of this paper is tailored and shortened to best fit in the structure of the special issue to be published.

Key words: freedom of information; pulbic data; data of public interest; transparency; ombudsman

TóTH, J., Bán-Forgács, N.: Towards the Dismantling of Freedom of Information in Hungary. Právny obzor, 107, 2024, special issue, pp. 21-32.

https://doi.org/10.31577/pravnyobzor.specialissue.2024.02

Introduction

By virtue of the constitutional changes in 1989, access to and dissemination of data of public interest became a fundamental right

in Hungary, and a special Law on FOI was adopted by qualified majority in 1992,

and in 1995 Parliament elected an Ombudsman to monitor the protection of personal data and the disclosure of data of public interest. The first Data Protection and Freedom of information Ombudsman (hereinafter DP and FOI Ombudsman) briefly described the constitutional status quo in 1989 as follows:

" The Law gives a very good reverse definition when it declares that all data that is not personal data, or not state secrets, or not official secret, and not preparatory decision - making document is of public interest. All data held by public bodies, local authorities and other organisations with a public-service mission, such as a public service television station or the National Bank shall be considered as data of public interest. This means that anyone wishing to obtain such data does not have to prove any interest. So the Law gives a great deal of freedom; and it is another matter what is actually done with it. As I see it, on the one hand, there is not an intensive demand for information of public interest, and on the other hand, there is a long-standing reflex in the offices that it is not the citizens' business what we do in the administration."

The specialised Ombudsman on DP and FOI has investigated complaints on fundamental rights violations; the Ombudsman's statements, recommendations, together with the case Law of the courts on freedom of information established a new body of Law that shaped the jurisprudence for transparency in Hungary, based on best europan practices and EU standards.

These developments were given a new boost by the EU accession process and finally by the EU enlargement in 2004.

The Hungarian Fundamental Law, which replaced in 2012 the Constitution of 1989, enshrined freedom to access data of public interest,

but in the meantime the Ombudsman's institution for freedom of information was dismantled, its head was unLawfully removed before the end of his mandate and a new supervisory authority replaced the former Data Protection and Freedom of information Ombudsman on 1 January 2012. The new authority is named national Data Protection and Freedom of information Authority (NDPI).

A new Act on informational self determination and freedom of information (hereinafter: information Act or infotv.) was enacted to replace the former data protection and freedom of information act of 1992. The new data protection supervisory body (NDPI) operates as an autonomous administrative body.

As a result of these constitutional and statutory changes in Hungary, the European Commission initiated an infringement procedure against Hungary. The European Court declared the infringement of the European data protection regime by Hungary in decision C-286/12. This case was the first major step towards a slippery sloop period where Hungary gradually lost most of its core institutional protections in the area of freedom of information.

The new Act on informational self determination and freedom of information of 2011 (infotv), gave the new supervisory body (NDPI) a wide range of administrative tasks, from fining to certifying the quality of data management, to guard the public access to data of public interest. This shifted the supervisory authority from an Ombudsman-type human rights institution to an administrative body with supervisory and sanctioning power. The new information Act (infotv.) was amended several times later on.

each time more power was granted to the supervisory body and less freedom to citizens to exercise control over public data.

In Hungary, as of year 2011, the lobbying Act and its implementing administrative rules (e.g. on the registration of lobbyists) restricted lobby activities, which in particular hampered public debate on draft legislation. Finally, the new legislative procedure was invoked to remove lobbying from the Law

10)

and even repealed the detailed Law on the electronic publication of public interest data.

11)

In a short period of extraordinary government measures during a natural disaster in 2015, not only was the Fundamental Law amended,

12)

but also the ruling by government decrees infiltered into Hungarian Law and legal system. This resulted the erosion of legal guarantees in the area fundamental right protection.

13)

The tendency was criticised by the European Union.

The EU 2024 Rule of Law Report on Hungary is critical of the lack of transparency in political party financing, public procurement, lobbying, on the restrictions on the freedom of (watchdog) civil society organisations (CSOs) and those journalists, which are closely linked to access to public data. Just to mention one quote from the relevant EU report: "In certain member States, civil society is faced with serious challenges or systemic undue restrictions to their operations. In Hungary, there has been no progress in removing existing obstacles for CSOs, with smear campaigns and the vilification of independent CSOs remain a current practice. In Hungary, concerns remain regarding the independence and effective functioning of the Commissioner for Fundamental Rights.[...] The right to access information held by public authorities is one of the main transparency and accountability tools for civil society and citizens and it is fundamental for journalists to do their work."

14)

It has been reported that freedom of information is increasingly restricted. "Further legislative changes have introduced some restrictions to freedom of information which had been subject to a recent reform. (...) in 2023 and 2024, Parliament adopted further legislative amendments, introducing new grounds for rejecting freedom of information requests. (..) According to stakeholders, these amendments make access to public information more difficult. Parliament has so far not implemented a Constitutional Court decision requiring legislative amendments to establish effective judicial protection in case of freedom of information requests related to public funds (..). While Hungary is committed to ensure that all public bodies publish specified data on the new transparency portal, stakeholders point out that proactive data publication on the new portal is not mandatory for all entities performing a public duty (..)."

15)

2. Malfunctions in the area of freedom of information in Hungary in the past decade

Access to public data (ie. freedom of information) is universally protected by almost all national legislations across the globe.

16)

Article 10 of the European Convention on Human Rights and Freedoms (1950), as part of freedom of expression, and Article 19 of the international Covenant on Civil and Political Rights (1966) also provide for freedom of access to information and freedom to communicate information within this framework. The Charter of Fundamental Rights of the EU includes freedom to receive and forward information/ideas, together with freedom of expression, within the scope of freedom of speech and expression without interference by public authorities and regardless of frontiers in Article 11. Thus, the restrictions are very general, they should fit within the protection of national security/state security, public order, public health or public morals in a democratic society, or the protection/respect of the reputation or rights of others, or territorial integrity, public safety, the p

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