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
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in Hungary, and a special Law on FOI was adopted by qualified majority in 1992,
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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."
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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.
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These developments were given a new boost by the EU accession process and finally by the EU enlargement in 2004.
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The Hungarian Fundamental Law, which replaced in 2012 the Constitution of 1989, enshrined freedom to access data of public interest,
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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.
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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 sanc