The Commissioner for Information of Public Importance and Personal Data Protection welcomes the fact that the Supreme Court of Cassation (in a session of the Civil Law Department) took a legal position according to which any denial of an appropriate reply to an information requester constitutes a violation of a personal tight, which entitles the information requester in all cases, as the damaged party, to file a petition for infringement proceedings on his/her own.
The Commissioner believes that this legal position of the Supreme Court of Cassation, which fully upholds the principles of equality and protects citizens’ rights, is the best possible response to the Initiative to ensure uniform judicial enforcement of the rights and equality of parties in infringement proceedings, which the Commissioner filed with the Supreme Court of Cassation in mid-2016.
The Commissioner always maintained that ignoring freedom of information requests was a violation of a right guaranteed by the Constitution and was specifically defined as an infringement by the Law on Free Access to Information of Public Importance (LFAIPI) and neither LFAIPI nor the Law on Misdemeanours provided any grounds for making the damaged party’s authority to file a petition for infringement proceedings conditional upon the damaged party first filing a complaint or indeed any other specific condition.
However, the case law to date has been chequered, with some courts upholding the information requesters’ ability to sue and acting on their petitions for infringement proceedings without any specific requirements, while others denied this right and failed to act on such petitions and did not initiate infringement proceedings or made the initiation of such proceedings conditional upon the information requester first exhausting the option of a complaint in administrative proceedings, with the additional condition that the competent inspectorate must not have filed a petition for infringement proceedings.
With this legal position, the Supreme Court of Cassation gave the best possible answer to a question that has both general and very practical implications. During the several years in which the competent Ministries (Justice and Public Administration) filed no petitions for infringement proceedings against those who violated the law, the possibility or right of the information requester to do so as the damaged party was in fact the only semblance of a mechanism for bringing to justice those who were responsible for violating the law. As the practice of the competent Ministry with regard to initiating proceedings to determine liability for violations remains very modest, the importance of the damaged party’s right should not be underestimated.
