Transparency of authorities means less rights for public figures

A democratic state requires information on persons performing important public functions, however, this does not cancel their right to privacy.

by Katarzyna Żaczkiewicz

The level of personal data protection in Poland as compared with other EU member states is high – claimed Mr Michał Serzycki, Inspector General for Personal Data Protection at yesterday’s „Right to Privacy in Surveillance Society” conference. However, this does not mean that there are no obstacles to data access. There are cases in which incompetent officials do not grant access to information even though it is their duty.

During the conference commemorating the 10th anniversary of adoption of the Data Protection Act professor Bogusław Banaszak, president of the Legislative Council, underlined the conflict of legal norms. A democratic state requires information on presons performing important public functions.

However, the political transparency does not exclude the application of generally accepted rules concerning right to privacy. As it was repeatedly indicated by the Constitutional Court in relation to persons applying for or occupying public positions, their right to privacy is subject to important limitations, for safety reasons. On the basis of the proportionality rule, Professor Banaszak postulated an enumeration in the Act of the data that should be disclosed for the sake of the transparency of authorities and added that both the courts and the citizens encountered difficulties due to the lack of a homogenous definition of persons performing public functions, civil servants or public figures.

According to professor Banaszak, it needs to be assumed that a person performing public functions is a one who, within the framework of these functions, makes decisions that have an impact on the situation of other persons. This definition excludes the individuals employed by public institutions performing technical functions and services. The Penal Code novelized in 2003 in Art. 115.5 is not in line with the definition of a civil servant overstepping his or her powers stated in a decision of the Constitutional Court.

Peter Hustinx, the European Data Protection Supervisor, in his speech underlined the provisions of two EU directives. New technologies cannot deprive the citizens of their rights. However, personal data need to be subject to certain limitations flowing from safety reasons and citizens’ rights and freedoms, including the right to privacy.