Facts
Association W. It asked the Polish Securities Printing Works S.A. (hereinafter: PWPW S.A.) to supply public information by indicating whether PWPW S.A. requested the National Election Office, the Minister of State Actors or another central authorities liable for organising elections of any returns and damages in connection with the failed presidential elections in May 2020. In the event of specified claims, the applicant requested access to any letters (applications, requests, calls for payment, etc.) which PWPW S.A. sent to specified entities containing the claims indicated.
In response, PWPW S.A. informed that it had applied to the National Election Office for compensation and details are available on the website of the National Election Office. On the another hand, in the remainder of the scope PWPW S.A. refused to make public information available due to the limitation of transparency resulting from Article 5(2) of the Law of 6.9.2001 on access to public information (Journal of Laws of 2022 item 902; hereinafter: DostInfPubU), i.e. the secret of the entrepreneur. The reasons for the decision stressed that PWPW S.A. is simply a one-person company of the State Treasury which is crucial for the economy of the State, not only produces banknotes, but is besides a supplier of comprehensive systems for managing public documents: from the production of physical documents, through the collection of individual data, their processing, personalisation and return of finished papers to citizens. It was explained that the basis for classifying individual information as a secret company is the decision of the individual creating the information, based on his/her own competence, and in the company there is simply a "List of eligible individual information as a Business Mystery". This list includes data specified as transaction prices, confidential price lists, negotiation documents, client lists, signed contracts and tenders submitted, supplier information, interior financial documents.
According to PWPW S.A., the disclosure of correspondence exchanged during the negotiations on compensation, and in peculiar the request for it, would not only undermine the trust of its counterparts, but would besides make it hard to conduct negotiations in the future. possible suppliers and recipients of services offered by PWPW S.A. could gain cognition of the costs and profits associated with the projects involved. This kind of correspondence is not widely available within PWPW S.A. and is communicated to individual employees in accordance with the “necessary knowledge” principle.
Business secret
The word ‘entrepreneur secret’ has not been explained in DostInfPubU, and therefore, in the explanation of Article 5(2) of DostInfPubU, usage the related word ‘company secret’ as defined in Article 11(2) of the Act of 16.4.1993 on combating unfair competition (Journal of Laws of 2022 item 1233). Under that provision, the secret of an undertaking shall mean undisclosed technical, technological, organisational or another information having an economical value which, as a full or in a peculiar combination and collection of its elements, is not commonly known to persons usually active in that kind of information or is not readily accessible to specified persons, provided that the individual entitled to usage or dispose of the information has taken, with due care, action to keep it confidential. In order to respect information as a business secret within the meaning of Article 5(2) of DostInfPubU, 2 requirements must so be met. The formal request is to express the willingness to disclose the information, which is manifested in the form of activities undertaken by the entrepreneur in order to guarantee the confidentiality of the data, and the material aspect is that the reservation should relate to information having a broadly understood economical value.
WSA ruling
WSA in Warsaw took into account the Association's complaint W. and annulled the contested decision, taking the view that PWPW had not shown that there were grounds for limiting access to public information under Article 5(2) of DostInfPubU. It is crucial that this regulation, as an exception to the constitutional rule of transparency of public information, cannot be interpreted in a way that would make it a fiction. It is so unacceptable to consider that it is adequate for an undertaking to be covered by the public information in question by arbitrary designation of the trader. In the opinion of the General Court of PWPW S.A., without any analysis and circumstantial mention to the content or nature of the information requested, it took the view that the information requested was effectively reserved. The explanations of PWPW S.A. were considered insufficient, as they did not indicate the circumstantial economical value of the claim for compensation, why its disclosure could jeopardise the entrepreneur. It is not clear erstwhile measures to keep it confidential were taken in relation to this document, nor is it known whether the work to keep the paper confidential was imposed on the staff and, if so, when.
NSA position
NSA dismissed PWPW's cassation complaint. The grounds for the judgement stated that formal and substantive conditions had to be fulfilled in order to refuse to make a peculiar public information available for reasons of business secrecy. The formal message is expressed in the manifestation of the will of a peculiar entrepreneur to conceal certain information. In turn, the material condition is that the information covered by the business secrets should be information that could affect its economical situation. The reasons for the decision refusing to supply information for the sake of the trader's secrecy should include an argument indicating whether both the formal and material grounds for refusal are met. However, it is not adequate to supply a general indication in the decision refusing to make the information requested available to the public that the information requested is covered by the company's secrecy. It is essential to show that circumstantial information contains the company's secret or is understood in any cases somewhat wider – the business secret (see NSA judgement of 5.7.2013, I OSK 511/13, Legalis).
According to the NSA, PWPW S.A. did not show in the justification of the decision that the information requested, specified as the information sent to the entities liable for preparing the alleged envelope elections, including requests, requests, calls for payment, is of crucial economical importance for this company. The Authority is limited to explaining that the basis for covering this information with the business secret is the decision of the individual who produced and guided it more closely to the unprecise ‘criteria of injury’. The NSA has stressed that the Authority cannot limit itself to a dated declaration of the existence of a business secret and should specify in detail, taking into account the grounds for the protection of the business secret, from which it derives the condition of refusal and in which it is justified. It is only specified an argument from the authority, combined with the origin materials made available to the administrative court, that it will make it possible to measure the appropriateness of the reasons for the disclosure of the information requested. However, the content of the decision refusing to make public information is not based on arguments to conclude that disclosure of the requested information will affect the economical situation of PWPW S.A.
Judgment of the NSA of 11.3.2025, III OSK 7741/21, Legalis
