The interior paper is mostly not public information

The NSA recognized the cassation complaint of the National Prosecutor from the WSA judgement in Warsaw of 19.2.2019, II SAB/Wa 573/18, Legalis, on the complaint of the Association on the inaction of the National Prosecutor on the provision of public information. The cassation complaint was dismissed. Previously, the WSA had obliged the National Prosecutor to consider the Association's application.

In the case where the judgement in question was taken, The Association requested the National Prosecutor's Office to supply a scan of the letter referred to in the article "National Prosecutor urges investigators to disregard the ultimate Court resolution", published on the website of the OKO.press portal. The applicant was informed that the letter did not constitute public information, due to the fact that it was of an interior nature and was not subject to public access. The WSA in Warsaw considered that the paper requested by the Association could not be regarded as an interior document.

The justification for the judgement given by the NSA indicated that not all activities of the entities mentioned in Article 61(1) of the Constitution of the Republic of Poland will be linked to the improvement of public information. Part of the papers serving only the needs of the obliged entity, although linked to its activities, is not public information and is not disclosed (internal documents).

The NSA indicated that in its judgement of 13.11.2013, P 25/12, Legalis, the Constitutional Tribunal stated that the content of the public information in question is excluded from the wide scope of the public information in question. internal documents, understood as working information (records, notes), which have been established in conventional or electronic form and constitute a certain thought process, a process of consideration, a phase in the final concept, the adoption of a final position by a single worker or team. In their case, it is possible to talk of a certain phase in the way of producing public information. The ‘official documents’ within the meaning of Article 6(2) of the Law of 6.9.2001 on access to public information (Journal of Laws of 2022 item 902; hereinafter: DostInfPubU) is so distinguished by ‘internal documents’ for the performance of a public task, but not judicious about the direction of the body. specified papers shall service to exchange information, to gather the essential materials, to agree views and positions. However, they are not an expression of the Authority’s position, and so do not constitute public information.

The case law of the NSA has repeatedly pointed out that, in principle, interior documentation or activities of a method nature are specified activities of an entity which is not a carrier of public information. The value of specified information is so not specified as:

The requested letter constitutes public information. This letter was undoubtedly produced by a public authority, obliged to make public information within the meaning of Article 4(1) of DostInfPubU. It afraid the activities of public authorities — the Public Prosecutor’s Office.

The order of the National Prosecutor is not of an interior nature, it does not concern matters ordering the organisation and conduct of prosecution proceedings. Its aim is to identify a uniform way of acting prosecutors as participants in court proceedings, in certain judicial and process configurations. Clearly, it concerns the external sphere of the prosecution's activities, including activities interfering with the legal sphere of the another parties to judicial proceedings in the framework of procedural interactions. The fact that the prosecution’s manner and manner of action does not find the final legal effects, as they depend on the judgement and decision of the court, remains irrelevant from the point of view of the legal assessments formulated under the present case. It is only crucial that these actions have an impact on the legal situation of the entities active in judicial proceedings involving the prosecutor. If these actions consequence from a paradigm that is based on a binding prosecutor's order from the National Prosecutor, the order shall be made available as public information as a origin of data allowing the prosecution to recreate the mode of operation of the prosecution and the way in which matters are handled.

If the prosecution, as a public authority, to which the protection of the regulation of law belongs, accepts by a binding order a circumstantial explanation of the provisions of the law followed by a expression of procedural activity appropriate to that interpretation, in accordance with the constitutional right proclaimed in Article 61(1) of the Constitution of the Republic of Poland, everyone shall be entitled to information on the content of specified an order. This is not information that concerns solely the internal, organisational sphere of the prosecution's activity, but the area of the prosecution's activity, in which individuals and another public entities (courts) are active. Clearly, concerning public affairs.

The question of the external nature of the letter is only applicable in determining whether the letter is an authoritative paper within the meaning of Article 6(2) of DostInfPubU. It should be confirmed that, in accordance with that provision, the ‘externality’ of the letter, understood as referring it to another entity or submitting it to the file, constitutes a defining feature of the authentic instrument. However, this does not mean that any letter that is not so understood externally is an interior document. The absence of a letter to an entity outside its author's organisational structure proves only that we are not dealing with an authoritative document. It does not prejudge that it is not a public information medium. That's what it's about.

The NSA ruling refers to the considerable applicable issue of making public information on the kind of papers the content of which is subject to the DostInfPubU rules. The classification of a peculiar information as being made available within the meaning of DostInfPubU is determined by the factual criterion, i.e. the content and nature of the information and not only the kind of document. It is surely not possible to accept specified a criterion that only authoritative papers or external papers may be made available to the entity which is the originator of the document. Nor can it be explicitly excluded that the alleged interior paper will be a public information average under certain circumstances.

The NSA indicated that not all public information paper is an authoritative paper and not all non-official paper is an interior document. The authentic instrument is only 1 form of public information incorporation. This is demonstrated by the structure of Articles 3 and 6 of the DostInfPubU, which are treated as 1 form of public information — Article 3(1)(2) and Article 6(1)(4)(a) of the DostInfPubU. The letter of the National Prosecutor shall contain the content which constitutes public information and the fact that the letter has not been addressed to entities outside the structures of the Prosecutor's Office shall not deprive it of that character.

Advocate Aneta Fornalik