The Court held that the case involves a collision of the interests of the Foundation and those of the State. According to the Court, a disclosure of the requested information may be detrimental to the interests of the secret services. The Court also noted that the CAB had not been obliged to designate the type of classified information which the Agency refused to disclose. This means that the Central Anti-corruption Bureau was not legally mandated to state whether information had been marked as “top secret”, “secret”, “confidential”, or “restricted”. As the Court said in the oral reasoning of the judgment, in a state no actions can be taken which may be detrimental to operations of intelligence or security services.
Snowden’s disclosures of the PRISM programme and other mass surveillance programmes, as well as secret collaboration between European and US security services, show that the means of democratic control over secret services are insufficient. The concerns and the lack of knowledge gave rise also to a number of questions about the operations of the Polish secret services.
For this reason, on 15 October 2013 the Helsinki Foundation for Human Rights, together with Amnesty International Polska and the Panoptykon Foundation, sent a number of questions to public authorities including the Prime Minister, government departments, secret services and parliamentary committees. The questions concerned the response of Polish authorities to media reports on the operation of the US programme PRISM and their collaboration with the National Security Agency.
The head of the CAB answered 10 questions appearing in the Foundation’s motion. Still, he refused to disclose whether or not the Bureau was technically capable of tracking telephone calls or online communication using keywords. He also did not say if the CAB had access to XKeyscore software. Further to the partial Central Anti-corruption Bureau’s refusal to respond, on 9 January 2014 the Foundation complained to a Provincial Administrative Court.
