The Helsinki Foundation for Human Rights („HFHR”), within a program „Human Rights and Settlement with the Past”, was monitoring the high-profile lustration case of Professor Jan Miodek. He was accused by a journalist Grzegorz Braun that he was a collaborator of secret services in the Communist era. Prof. Miodek started so-called auto-lustration proceedings in order to clean himself from any accusations. Recently he ultimately won a case and the court declared that he was not a collaborator and any accusations were untrue.
In the course of proceedings in the above case there was an incident that especially caught the attention of the HFHR. Upon the motion of Grzegorz Braun (journalist who accused Prof. Miodek) the court agreed for testimony of a witness – the Deputy Director of the Archive Office of the IPN. This witness submitted testimonies as regards documents concerning Prof. Miodek held in the IPN archives. He informed that for a few days he was preparing to make a testimony and reviewed them thoroughly. Upon his own initiative he submitted additional certified documents from archives, which were not at the court’s disposal before.
Following this, the HFHR requested a detailed information from the IPN about the basis for actions of the IPN employee regarding access to the IPN documents. The HFHR was concerned whether the professional obligation to keep official secrets by the IPN employees was violated. The HFHR thought that such privileged access (and external use of collected information) by the IPN employees is much wider phenomenon and its consequence is so called “wild lustration” – numerous leaks to the press or abuse of information in court proceedings.
The IPN refused to provide any information upon the motion of the HFHR claiming that it is not a public information, but an information on an individual case. It was not the first case in which the IPN did not want to provide public information. In this case, however, the IPN’s point of view was shared by the Regional Administrative Court in Warsaw, which refused to agree with the HFHR complaint. Therefore, the HFHR appealed the case to the Supreme Administrative Court. The SAC completely agreed with the HFHR arguments and quashed the judgment of the Regional Administrative Court. It ordered also the IPN to provide relevant information. Judgment is especially important because it underlines the role of NGOs in controlling activities of public authorities.
The SAC underlined that the HFHR is an organization undertaking actions in the public interest. It has a right to claim information from the IPN on its activities and its employees. It includes a right to information on relevant procedures of providing information on the content of the IPN archives (being of sensitive nature) and a right to information how such documents are used by the IPN employees. It is the major purpose of the FOI Law – to provide for principle of transparency of public bodies, social control over their activities and building up the civil society.
The SAC in oral justification underlined a few times that the HFHR by requesting such information is not acting in its own cause, but in the public interest. Questions asked by the HFHR are in many cases identical as those posed in the public debate. As a consequence, one cannot claim that the HFHR is acting in an individual case. One may hope that following this case the practice of the IPN, as well as many other authorities refusing provision of public information, will change.
Adam Bodnar, Ph.D.
