(ARTICLE 19/IFEX) – The following is a 17 July 2000 joint statement by the Constitutional and Legal Policy Institute, ARTICLE 19 and the Access to Information Programme, regarding public access to data relating to the National Radio and Television Commissionâs (ORTT) frequency distribution: COLPI, THE CONSTITUTIONAL & LEGAL POLICY INSTITUTE ARTICLE 19 ACCESS TO INFORMATION […]
(ARTICLE 19/IFEX) – The following is a 17 July 2000 joint statement by the Constitutional and Legal Policy Institute, ARTICLE 19 and the Access to Information Programme, regarding public access to data relating to the National Radio and Television Commissionâs (ORTT) frequency distribution:
COLPI, THE CONSTITUTIONAL & LEGAL POLICY INSTITUTE
ARTICLE 19
ACCESS TO INFORMATION PROGRAMME
Joining opinion to the Petition regarding public access to data relating to the frequency distribution procedure of ORTT
This opinion is submitted by COLPI, ARTICLE 19, and AIP (the Access to Information Programme) with respect to the petition to the Data Protection and Freedom of Information Commissioner regarding public access to data concerning the frequency licence distribution procedure of ORTT.
It is our opinion that data directly relating to the decision-making process in the allocation of licences by ORTT should be made public after the decision has been made. Here we evaluate the Hungarian law and note some comparative examples.
Facts
In advance of frequency licence allocation, ORTT announced the tender in volume XLIII. 22. of the Cultural Gazette. In this announcement, ORTT defined categories upon which the submissions were to be judged and scores to be given. However, after the decision had been made and the results of the tender had been published, ORTT only made public the total scores achieved by each applicant, and not the details of the scoring in each category. This lack of information prevented unsuccessful applicants from knowing the exact reasons for the failure of their application versus the success of other applicants which therefore made it difficult to mount a legal challenge to that decision as well as making it unclear how to improve applications for submission in future licence allocation rounds.
We understand that, when requested to make public this information to one of the applicants, ORTT first held a meeting to decide whether or not to release some of the information. Some further information was then made public.
Opinion
We are of the opinion that data relating to the decision-making process in broadcast frequency licence allocations should be released automatically to applicants or to any member of the public. Our reasons for asserting that both Hungarian and international law require such information to be made public are as follows:
1. Openness is required of all public bodies
Under international standards and under Hungarian law, all administrative and public bodies are required to make information available to the public unless it falls within a narrow and well-defined range of exemptions which may be applied only if release of the information would cause a substantial harm to a legitimate interest and if there is no overriding public interest in disclosure of the information.
The Hungarian Act on the Protection of Personal Data and Publicity of Public Data of 1992/63 at Point 3. of Section 2 establishes that public data is “non-personal data collected, kept or processed by an institution or person performing state, local governmental or public duties”. In our opinion, ORTT is such an institution because a) distribution of frequencies is a public duty, by which the state fulfils its constitutional obligations and its obligations undertaken in international covenants, b) Hungarian jurisprudence holds that institutions having an autonomous legal status, like ORTT, are state administrative organs.1
Therefore data processed and kept by the Board shall be regarded as public data, from which the law only permits the following exceptions:
Section 19 Subsection 3
– it has been qualified as state or office secret by the authorised organ according to law;
– it is qualified data under an international obligation;
– if law restricts the right of access to public information – by defining the types of data;
The data in question – the information on the decision-making process by ORTT – should not, according to international standards, be classified as a state or office secret and is not the type of data which international obligations require or permit to be kept confidential. We therefore assert that it would not be legitimate to classify this data under the first two points of the possible exemption. On the third point, we are aware of an argument that the data should be kept confidential on the grounds that it is part of the decision-making process, but international standards require that once the decision-making process is completed the legitimate interest in protecting that process ends, and that information directly relating to the decision should be made public. This last point is further elaborated below at Section 3.
We therefore conclude that the data in question does not fall into one of the categories for restriction and that it should be made public.
2. Administrative bodies are required to present reasoning for decisions
A basic principle of administrative law in Hungary, as in many countries, is that administrative bodies should make public the reasoning for decisions. As noted above, ORTT falls within the definition of an administrative body for freedom of information questions which should include the transparency of the decision-making process. Therefore, although the Radio and Television Act of 1996 does not specifically oblige ORTT to give reasoning for its decisions, it does have this obligation under Hungarian law.
We note that such a conclusion does not appear to be contrary to the legislator’s intention, since according to Section 96 Subsection (4) of the Radio and Television Act, data contained in the submissions themselves shall be made public after the contract with the programme provider has been concluded.
We also note that in established democracies, the reasoning in broadcast frequency licence allocation decisions is made public. For more information of examples of how this works in the United Kingdom, United States, and Sweden and France, please see the Appendix to this Opinion.
3. Restrictions on data relating to the decision making process should be limited.
We do recognise that the Act on the Protection of Personal Data and Publicity of Public Data at Subsection (5) states:
– unless the law otherwise provides, data created for internal use, as well as decision-making data shall not be public until 30 years after its creation. The head of the institution may permit imparting such data if requested. The law does not, however, provide for the definition of decision-making data.
We note that such a restriction on decision-making data is common in many European democracies. The aim of such a restriction is to protect the decision making process, including to protect free and open debate within the administration. Such a restriction is in the public interest. It is not in the public interest, however, to keep confidential the information which had a direct bearing on the decision taken, after that decision has been taken and made public. In other words, the aspects of the decision-making process which ensure transparency of that process and which contribute to the reasoning for the decision, should be made public once the decision has been taken. Public access to such data guarantees the legitimacy of a decision in a democratic state. The constitutional right to appeal can be exercised only in possession of such data.
Furthermore, we note that provision of decision-making data is valuable information for re-applications and for other future applicants and it is therefore in the public interest to make it public.
In conclusion, we respectfully submit to the Data Protection and Freedom of Information Commissioner our opinion that the data used by ORTT to reach its decision on the allocation of frequency licences, is data of public interest which ORTT has an obligation to make public and that there can be no justification on any grounds for keeping this information confidential.
Helen Darbishire, Constitutional and Legal Policy Institute, Budapest
Judit Bayer, Lawyer, Budapest
Fiona Harrison, ARTICLE 19, London
Gergana Jouleva, Access to Information Programme, Sofia
Budapest, 17 July 2000
Appendix.
1. Relevant Law & Practice in the United States:
In the United States, the Federal Communications Commission (FCC) determines the licensing of radio stations. The criteria and how they are weighed are completely available to both the public and the applicant.
After receiving a license, all documents from the application process, including comments and recommendations and reasons for acceptance must be kept in two places. One copy is kept on the premises of the station and are available to any member of the public, immediately, upon request. The other copy is kept at the FCC in Washington D.C., and is also totally available to the public.
If a license was denied, a full copy of all of the same documents along with an explanation of why it was denied is kept in the FCC’s office and is also totally open to the public immediately upon request.
2. Relevant Law and Practice in Sweden:
The licensing of a radio or television station requires an official document, and all official documents are fully available to the public, immediately upon request if possible.
In addition, all materials used while in the creation of an official document, including all policies, impressions, notes of the authors, data and information evaluated, also become official documents in the moment when the decision is made.
In the event of a national security concern, the very specific portion that is of concern is covered up and the rest given to the requesting person, but this is not normally the case with regard to decisions on frequency allocation. Protecting the “decision making” process is not considered a valid reason for any kind of restriction on any documents.
3. Relevant Law and Practice in the United Kingdom
In the UK the Radio Authority which issues licences for use of frequencies by radio stations, makes available in reading rooms the applications of all candidates and the assessments of successful candidates.
The Independent Television Commission in the UK makes available (including on the Internet) the assessments of applicants and the applications, with the exception that confidential aspects of the business plans of applications are not made public.
4. Relevant Law and Practice in France
In France the “motivation de rejet” (grounds for rejection) of a radio licence is made public by the Conseil Superieur de l’Audiovisuel (CSA). By this means unsuccessful applicants are able to know reasons for the decision and have the grounds on which to appeal to the Courts.
For television licences, a public hearing is held and the application and deliberation process is therefore public. Members of the public may obtain further information from the CSA using the French Access to Information Law (Loi No78-754 de 17 juillet 1978).
1 Magyar Közigazgatási Jog Ãltalános Rész, Szerk. Ficzere Lajos, Osiris, Bp. 1998. 112. old.
