In 2021, K-Monitor turned to the National Authority for Data Protection and Freedom of Information because newly established public interest trusts (PITs) did not comply with statutory rules on proactive disclosure. This year, K-Monitor also reported the failure of a municipality, already relying on the new transparency rules adopted in the rule of law debate with the European Commission. Our moves triggering the Authority have led to bizarre outcomes. While more and more public money has been swallowed up by the PITs, the authority has failed to take a decision on our case for two years, but in the new transparency procedure it made municipal contracts be removed from the new transparency portal set up by the government in the rule of law debate.
New transparency site rum by the Hungarian Government
After the European Commission launched the conditionality procedure against Hungary in April 2022 following systemic problems in the rule of law, the Hungarian government has pledged a number of commitments to remedy the problems. As part of the commitments, the Freedom of Information Act was amended: the government set up a central repository for contracts and gave the National Authority for Data Protection and Freedom of Information the power to impose fines. This power is new as the Authority has so far only been empowered to impose sanctions in data protection and not in FOI cases.
What Cases Can the Authority Examine?
The newly created Central Public Data Information Register is an online contract repository where public bodies are required to upload data on their contracts, which are then made public. The Authority is called upon to check that the bodies required to publish data proactively have uploaded their public spendings to the repository.
What bodies Are Required to Upload Data to Repository?
Not all public bodies are obliged to provide data. Only public bodies having a budgetary status under the Public Finance Act fall under the scope of the new disclosure rules. For example,
- public interest trusts (e. g. Mathias Corvinus Collegium Foundation)
- state-owned or municipally owned companies (e.g. Hungarian National Asset Management Inc.),
- the Hungarian National Bank
are not required to provide data to the repository.
However, bodies falling out of the scope of the new law are still obliged to publish data in accordance with the so-called General Disclosure List set out in Annex 1 to the FOI Act.
Although the new law requires data to be uploaded in a readable and searchable format, it is not easy for citizens to get access to the data. The different bodies bi-monthly upload the data in separate pdfs. The files can only be downloaded after filling out captchas. Information on contracts is also hardly comparable.
When Can the Authority Take Action?
New rules provide that the Authority can open a transparency procedure, if a public body with budgetary status fails to upload or incompletely uploads the information to be published on the repository. If it is not about a body with budgetary status, the Authority’s new power cannot be triggered.
The Authority's tools are therefore sharply differentiated depending on whether a body has a budgetary status or not. Non-budgetary bodies have fewer obligations and, even if they do not comply with them, the Authority can only send them or their supervisory body a polite letter to remedy the failure to disclose data. If there is no development, the Authority can go to court. However, as far as K-Montor knows, this has not yet happened.
The procedure can be initiated by anyone without paying any administrative fee. However, persons initiating the procedure are not considered a client in the sense of Hungarian administrative law, which means that they can not exercise rights such as right of access to the case file or the right to challenge the Authority's decision before court. The person only has the right to be informed of the opening and closure of the procedure.
K-Monitor’s Cases Before the Authority
In 2021, K-Monitor monitored all PIT websites and found that the majority of PITs did not comply with their general disclosure obligations set out by Annex 1 of the FOI Act. For this reason, K-Monitor turned to the Authority in November of that year and asked the Authority to examine the PITs.
Since K-Monitor filed the complaint in 2021, the Authority has not responded to it. The Authority’s reluctance is not unlawful, as the law does not set a time limit for the procedure, so it can take essentially any length of time for the Authority to reach some conclusion on the violation. As the PITs are not budgetary bodies, the new transparency procedure cannot be initiated in their case, so it remains to wait for the Authority’s response.
In May this year, K-Monitor again submitted a complaint to the Authority. However, our complaint was made against the municipality, this time, under the new transparency procedure rules. K-Monitor claimed that the municipality had not uploaded any data to the repository by the due date in February.
In its submission K-Monitor indicated two legal entities belonging to the same public body to be examined: the municipality itself and the mayor’s office of the same municipality.
Following our submission, the Authority launched the new kind of transparency procedure rapidly.
During the procedure, the Authority started an intensive correspondence with the mayor's office, which admitted that it had not uploaded any data at all for months. For the delay it claimed an ‘administrative error.’ However, the data it did upload lately were not contracts concluded by the mayor's office, but contracts by the municipality. The mayor's office eventually uploaded data more than three months later than the deadline, in June, but data that was relatively old, before November 2022.
In response, in September the Authority terminated the procedure concerning the municipality because pursuant to the Public Finance Act, the municipality itself is of no budgetary status, only the mayor's office does. In other words, only contracts concluded on behalf of the mayor's office should have been uploaded, not those concluded on behalf of the municipality.
Concerning the mayor's office, the Authority examined the merits of our submission and came to the conclusion that the mayor's office had acted unlawfully (Decision No. NAIH-5558-12/2023).
However, the FOI violation was not that the mayor’s office uploaded data months after the due date. The Authority established the violation on the facts that it uploaded data of the municipality, and for a period not yet covered by the disclosure rules. In view of this, the Authority ordered the mayor's office to delete the data that have been already published.
In short, the public body has belatedly uploaded the data of the contracts concluded by the municipality and the 2022 contracts of the mayor's office, which should have been removed by the mayor's office as ordered by the Authority.
However, the municipality seems to be ignoring the Authority’s decision. In addition, the municipality's profile is still listed among the public body profiles available on the repository. The data uploaded by the municipality on 20 June is still available. The mayor's office has also not deleted the unnecessarily uploaded data.
The fate of these two submissions clearly highlights the shortcomings in law and practice that prevent access to data of public interest.
- Bodies subject to the new disclosure on the repository are a much smaller group of entities than the bodies that use public money in Hungary. As K-Monitor’s submission showed, it is not only the PITs, state owned or municipally owned companies or the Hungarian National Bank that fall outside the scope of the Authority’s new procedure, but also the municipalities.
- A ‘municipality’ is not a public body having budgetary status under Article 104(1) of the Public Finance Act, therefore it is not obliged to publish data on repository. This is a serious shortcoming because contracts at the local level are typically concluded by the 'municipality' and not by the 'mayor's office'. And with municipalities out of the picture, transparency in the local use of public funds is limited. Interestingly, many municipalities have uploaded contract data on behalf of the ‘municipality.’
- Many public bodies that use public money, but do not have budgetary status, cannot be subject to a transparency procedure ending in a sanction. In such a case, the most that can be done is to open an examination and not a transparency procedure by the Authority, for which there is no time limit in the law and which can therefore take years. The delay of years has also been demonstrated in K-Monitor’s PITs submission, as it has not received a reply to the 2021 submission by the second half of 2023. On the other hand, in the case of bodies without budgetary status, the legislation does not even provide any effective means (order, fine) to take action against the bodies failing to publish data.
- In case of bodies without budgetary status, the Authority is empowered to bring the case before court. However, to K-Monitor’s knowledge, the Authority has not yet done so in the last few years.
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