Since the European Commission initiated the conditionality procedure against Hungary in 2022, several amendments have concerned the freedom of information framework. Over the past two years, K-Monitor has regularly reported on changes. Now, K-Monitor provides an overview of the amendments and compliance with the milestones agreed on by the Government and the European Commission.

 Forrás: Fortepan / Korenchy László

Speeding up court proceedings

The Parliament amended the Freedom of Information Act with Act XL of 2022 by speeding up court proceedings in access to public interest data cases. The amendment added further procedural rules to Court procedure rules in the Freedom of Information Act. These rules have not been amended since adoption in 2022 (Milestone 229).

“Disproportionate workload”

Since 2015, Hungarian public bodies could charge fees for “disproportionate workload” on large data requests, even for electronically processed data, often using this to delay responses. Government reforms in 2022 limited charges to materials and postal costs only, capping them at HUF 10,000 to HUF 190,000 and excluding labour fees. During the pandemic, response times were extended to 45 days (with a possible further 45-day extension), leading to routine, unjustified delays. This extension was also repealed in late 2022, returning response times to standard limits (Milestone 230).

The Authority's New Reporting Duty

The Freedom of Information Act was also amended by an omnibus bill Act No. CI of 2023 in December 2023. Pursuant to the amendment, information that could otherwise be directly obtained from a single (subordinate) entity has no longer to be shared with the requester.

Public entities are mandated to maintain records of received requests including the reasons for rejection and report on these annually to the Authority. Under the December 2023 amendment, public bodies are obligated to report only the main grounds for rejecting requests to the Authority. Additionally, they must provide data on the average processing time for requests and links to the disclosed information. To facilitate this reporting process, the Authority has devised a form for public bodies to furnish detailed information on their handling of requests. Furthermore, the Authority will be tasked with conducting assessments of public bodies' compliance with the law, including proactive disclosure rules twice a year, or even upon a request, with the possibility of issuing recommendations to the entities under review. In response to these recommendations, the respective heads of the bodies concerned will be obligated to formulate an action plan addressing the identified issues and submit it to the Authority within 15 days of receiving the recommendations. The law also provides that based on the monitoring and report of the obliged bodies, the Authority makes an overarching report, which forms part of the annual report of the Authority. The Authority's report is based on the bodies’ reports containing the number of the requests, number of rejections and their main reasons, the average number of days necessary to process a request, and information about proactive disclosures.

Foreign policy interests - less transparency

Legislation governing publicly owned companies, the Act No. CXXII of 2009 has been changed by the December 2023 amendment, too. Freedom of information requests directed at state or municipal owned enterprises must be denied for a period of 10 years if the release of data bearing financial, technical, or business significance could potentially harm foreign policy interests. The consideration of the public interest remains a requirement, but the involvement of the minister's opinion on the public interest will be obligatory in all cases. The time frame for responding to such requests does not encompass the duration required to obtain the Minister's opinion.

Documentation of government meetings - less transparency

Similar rules apply to the documentation of government meetings, upon Act No. CXXV of 2018 has been amended by Act No. CIX of 2023. Under the new law, if the government determines that disclosing a government decision would compromise the public interest, it must deny disclosure, but this denial can only be in effect until the public interest is no longer jeopardised, with an absolute maximum time frame of twenty years. Consideration shall be given to whether the public interest protected by withholding the information overrides the public interest served by making the information publicly available. These requests will be decided by the state secretary of the Prime Minister's Office. In cases where deemed necessary, the opinion of the competent Minister must be solicited. The Minister is obliged to provide the balancing on the public interest at stake within a 15-day period. It is worth noting that prior to this amendment, the maximum period for which government decisions could be restrained was 10 years.

Internal documents - less transparency

Bill No. T/9514. plans to amend the Freedom of Information Act again. The amendment makes it clear that the period from the date of the request for clarification until the date of receipt of the response from the requester does not count towards the time limit for complying with the request. The amendment expands the range of entities controlling public interest data to include the bodies receiving the data from another data controller as well. The amendment broadens the grounds for rejection in case of preparatory data (internal documents). The request can be refused if it would endanger the position of the body developed during a court proceeding. ​​The rule concerning data held by EU bodies will be amended so that in the future, inquiries to the EU will only be sent if it  is necessary.

No rule has been adopted to ensure that any information made available upon an access to information request shall be made available simultaneously in the central register mentioned in milestone 175.

Forrás: Molnár Noémi Fanni

Assessment of the steps taken, main deficiencies

Research shows that new litigation rules have significantly speeded up access to information. It can take months to close a court case instead of the year and a half it used to take. The Budapest-Capital Regional Court is very serious about keeping the fast-track deadlines. Speeding up the procedure is principally welcome. 

However, the fast-track rules can in many cases be burdensome for the data requester. Under the new rules, it is permitted for the defendant to present its defense orally at the first hearing. In such a situation, the data requester cannot prepare effectively and has to develop their arguments right at the hearing. Adjournment of the hearing in such a case is also only possible in exceptional circumstances.

Under the new rules, there is a greater need for preparation and representation by a lawyer, which makes access to justice more costly. First, because of the fast-track procedure, lawyers need to be available on a more flexible basis while the case is running. Second, because of the importance of the first hearing, legal expertise is necessary even in cases where representation is not required by law. 

Short deadlines can also be a challenge for courts when hundreds of pages of documents have to be reviewed and assessed properly within the 15-day timeframe. There is no data available on whether court capacities (staff, courtrooms) have been strengthened to cope with the new rules. Time pressure on judges might decrease the quality of justice. 

A stay of the proceedings cannot be requested even at the joint request of the parties, which precludes the parties from having time to make a settlement.  

The fact that trade secret holders can be involved in the procedure could be justified, but it brings a number of risks for citizens. The increased number of defendants and the risk of high legal costs may discourage data requesters from turning to court. While there have been examples of corporates intervening in the lawsuit to protect their trade secret, there have been no examples of the Authority acting in support of the data requester fighting for transparency. 

Despite significantly speeding up the procedure before ordinary courts, there is still no rule on the time limit for the HCC to rule on FOI cases upon a constitutional complaint. After a lost FOI case, it can take years for the HCC to rule on the case, at a time when the data being sued for lost its significance. 

No rule has been adopted to ensure compliance with HCC decision No. 7/2020. (V. 13.) to provide judicial remedy against companies receiving public funds. Since the government has not amended the law to fix this issue since 2020, companies, associations and foundations receiving public funds cannot be sued before court in freedom of information cases.

As a consequence of the amendment of December 2023, citizens are compelled to individually approach and, if necessary, engage in legal proceedings with various entities, even if the sought-after data could reasonably be procured from a single body with control or oversight over multiple others. This amendment seems to be a response to the ruling issued by the Kúria (Pfv.20.278/2023/6).

Provisions on the Authority's new reporting duty are not completely in line with millstone (milestones 231-232). On the one hand, the data that the monitored bodies’ report should indicate is more general as prescribed by the milestone. On the other hand, the law foresees only one Authority report in a year by contrast with the milestone requiring two reporting periods within one year. The basic content of the Authority’s report is not governed by the law. In practice, the Authority had a very short preparation time for exercising its new competence. Just as the reporting bodies had only one month to provide information under the new law, by the end of January. 58% of the reporting bodies complied with the reporting duty, while 42% did not fulfill this requirement. The Authority published its annual report of 2023 in March 2024. The Authority’s report includes figures showing aggregated data on the type reporting bodies, number of rejected and granted requests, different categories of grounds for rejections. This structure follows the Authority's previous reporting practice.  The report does not identify the shortcomings per public body concerned and does not identify the number of requests for access to public data received, the number of complaints related to the sharing of public data, the number of requests fulfilled and the number of days it took to fulfil them, and how these shortcomings shall be remedied and followed up, as well as recommendations how access to public data may be improved. 

New rules on data requests concerning foreign policy interests are principally in line with the Freedom of Information Act’s provision on preparatory data as the denial is not automatic and a public interest test should be made by the Minister. However, courts might interpret the law as the balancing of the Minister can not be reviewed by the court. Under this interpretation no judicial remedy would be provided for those contesting the Minister decision. This amendment could pertain to matters related to the confidentiality of contracts involving Hungarian Railways’ joint project with China or other foreign entities, such as the recently announced Maxi-Dubai project. Furthermore they could be applied to make government decisions confidential that aim to foster the establishment of new battery factories by Asian investors. The same matter in case of the Budapest-Belgrade Act is before the Hungarian Constitutional Court (Case No. IV/02579/2022.). Kúria found that courts are not in the position to overrule the Minister’s decision (Case No. Pfv.IV.20.100/2022/5.). The law on foreign policy interests could also lead citizens to experience delays in receiving information regarding the status of their data request.

Similar rules on government meetings’ transparency are not in line with the Freedom of Information Act. The amendment extended the duration for non-disclosure, which now stands at 20 years, as opposed to the previous period of 10 years. Previously, the government could not automatically assert that a government decision from 2012 was preparatory data. This has relevance as the 10 years timeframe would have allowed journalists and researchers to explore the first years of the Orban government in more detail. The time frame for getting the Minister’s decision does not count into the general 15-day response time, meaning that until the Minister offers their opinion, no substantive response will be issued to the citizen. Consequently, this opens the door for exploiting the minister's involvement to the detriment of the individual seeking the data. Until the Minister's opinion is obtained, the deadline for responding to the request will not expire.

As a consequence of the Bill No. T/9514, new rules of the statutory due date for a reply could easily be used to unnecessarily delay responses to public interest data requests. The provision regarding future decisions paves the way for further restrictions on access to information. The clarification of the concept of public interest data and the provision regarding inquiries to the EU are forward-looking.

Recommendations

• No separate laws restricting access to information shall be passed to avoid the fragmentation of legislation.
• In freedom of information cases the defendant should not be allowed to change the ground for rejecting the FOI request that it communicated to the data requester before the lawsuit.  If the defendant submits that it does not process data, it should be obliged to state which public body is competent for the data pursuant to the Tromso Convention.  The defendant should file a statement of defense before the first hearing. The defendant should not be allowed to change its defense during the trial. With the consent of the parties, the court should be given the option to override the 15-days-time frame for hearings and schedule the hearing for a later date. The court should be allowed to order a stay of proceedings if the parties jointly request it. General rules of submitting evidence should apply. Rules allowing for proportionality should apply to the 
• legal costs of intervening defendants protecting trade secrets, so that the amount of legal costs does not deter citizens from going to court. 
• A time limit should be set for the HCC when deciding on FOI cases.
• Compliance with HCC decision No. 7/2020. (V. 13.) should be reached. 
• Law should be adopted to ensure that any information made available upon an access to information request shall be made available simultaneously in the central register mentioned in milestone 175.
• Laws restricting access to information for more than 10 years should be repealed. 
• Judicial remedy should explicitly include the review of the Minister’s decision in freedom of information cases to ensure that the public interest test is also made by an independent body.
• The Authority should be empowered to impose sanctions in freedom of information cases and not only in transparency procedures.
• Reasonable preparation time should be ensured to the Authority and the reporting bodies before changing the law on reporting.
• The law should provide that the Authority’s reporting is semi-annually.
• The Authority’s report should identify the shortcomings per public body concerned (at least identifying the number of requests for access to public data received, the number of complaints related to the sharing of public data, the number of requests fulfilled and the number of days it took to fulfil them), and how these shortcomings shall be remedied and followed up, as well as recommendations how access to public data may be improved.

This analysis is a more detailed version of part C9.R26 from the comprehensive assessment made jointly with Amnesty International Hungary, the Hungarian Civil Liberties Union, Hungarian Helsinki Committee and Transparency International Hungary in November 2024.