Lubartów, August 9, 2017
What do officials do? Mystery!
We present the content of the complaint, submitted in connection with the refusal to disclose public information, regarding the scopes of activities of the employees of the City Hall in Lubartów:
Complaint
based on Article. 3 par. 2 ppsa for inactivity and gross violation of the law by the Mayor of the City of Lubartów regarding the refusal to disclose public information and the failure to issue an administrative decision in the matter.
Justification
On On May 5, 2017, I asked for public information in the form of sending the scopes of activities of all employees of the City Hall in Lubartów. The requested information constitutes public information within the meaning of Art. 6.1. 3 and 4 of the Act of September 6, 2001 on access to public information.
In response, the Lubartów City Hall provided me with the job requirements cards of heads of departments and office managers who are public officials and other heads of organizational units. At the same time, he refused to issue the other requested documents, claiming - unreasonably that the scopes of activities of other employees are internal organizational documents, constituting an integral part of the employee's employment contract and do not constitute public information.
In connection with the above, I submitted a reminder of May 23, 2017, simultaneously calling for a negative decision in the event of maintaining the position.
Moreover, I indicated that "bodies authorized to perform public tasks, by definition, do not undertake other activities such as dealing with public affairs, and thus - employees of the Office take part in the production of official documents as part of the performance of official duties, and therefore the scope of these duties from the essence of the case - it cannot be classified information ”.
In response from On May 25, 2017, the authority maintained its position, while refusing to issue an administrative decision.
Considering the subsequent refusals to provide information and to issue a decision in this case, the Authority was inactive and grossly violated the law, both in relation to the administrative procedure and under the Act on Access to Public Information.
I understand that, as a rule, access to the personal files of each employee is limited. However, I do not request access to the personal files of employees, but only the provision of scopes of activities that reflect the organizational structure and the performance of specific activities in the field of public administration, which - as I understand - is related to individual positions. In this respect, linking the scope of activities with the employment contract (and therefore with a person) is not important to me, but linking the catalog of activities with a specific official position.
In the case at hand, the allegation concerns both the failure to disclose public information and the refusal to issue an administrative decision.
Due to the refusal to disclose public information in the requested scope, I submitted a complaint to the Provincial Administrative Court. However, I decided that due to the fact that, in accordance with the subject of activity and competences, it would be appropriate to apply to the Local Government Appeal Court in Lublin. As, as a rule, the reply to the complaint is sent to the complainant - the City Office in Lubartów took a position on the case. This argument is incomprehensible for us.
It is clear that the right to public information is limited due to the privacy of a natural person, but even in the case of remuneration of local government employees - their amount constitutes public information.
It should be emphasized that the Act on access to public information did not introduce a legal definition of a person performing a public function. As I mentioned above, the authority on this basis is the basis for both the refusal to disclose information and the refusal to issue an administrative decision. Which is even more incomprehensible, taking into account the fact that, for example, an inspector in any of the City Hall departments does not only perform service activities, although he does not issue administrative decisions.
Pursuant to Art. 61 of the Constitution of the Republic of Poland, a citizen has the right to obtain information about the activities of public authorities and persons discharging public functions. This right also covers obtaining information about the activities of economic and professional self-government bodies as well as other persons and organizational units in the scope in which they perform tasks of public authority and manage communal property or the property of the State Treasury.
Therefore, the right to this information cannot be limited solely on the basis of the provisions of the Criminal Code or the Act on restricting economic activity by public persons. In addition, in response to the complaint, the authority's representative himself indicates that the jurisprudence of administrative courts regarding the disclosure of public information on local government employees is divergent.
In the content of the letter, the authority indicates that it relied on these judgments, from which it follows that only those employees of the Lubartów City Hall who perform functions related to the substantive preparation of decision-making processes related to the issuing of decisions should be considered as a person holding a public function in a local government body. governing authority of the authority in which they are employed.
Taking into account this interpretation, it should be recognized that the only persons performing auxiliary activities at the Lubartów City Hall are: cleaners, messengers, a person accepting documents at the Customer Service Point and secretaries.
Because all other people employed in the Office, when preparing numerical, area or other data, are related to the substantive preparation of decision-making processes related to the issuance of rulings of the authority in which they are employed. This is because a person authorized to issue administrative decisions may evaluate the material prepared by the above-mentioned materials and issue a decision in the matter. It is logical and does not require additional support in the reference number of court files.
The Supreme Administrative Court stated that under the Act on Access to Public Information, the concept of "a person performing a public function" has an autonomous and broader meaning than in the Act on Restricting Economic Activity by Persons Holding Public Functions or in Art. 115 § 13 and 19 of the Criminal Code. Used in art. 5 sec. 2 of the Act on access to public information, the concept of "a person performing a public function" covers any person who has an impact on shaping public affairs within the meaning of Art. 1 clause 1 of this act, i.e. to the public sphere. In its justification, the Supreme Administrative Court indicated that pursuant to Art. 5 sec. 2 of the Act on access to public information, the right to public information is limited due to the privacy of a natural person or business secret. This restriction does not apply to information on persons performing public functions related to the performance of these functions, including the terms of entrusting and performing functions, and in the event that a natural person or an entrepreneur resigns from their right. The concept of a person performing a public function is thus understood broadly and is not limited to public officials only, but includes any person related to the performance of public tasks (e.g. a teacher at school), or who is just applying for their fulfillment (ref. Ref. No. I OSK 1530/14)
As indicated in the jurisprudence, the regulation of Art. 5 sec. 2 sentence 2 udip comprehensively defines the limits of the right to privacy (see the judgment of the Supreme Administrative Court of 29 December 2011, file reference number I OSK 1854/11). Limiting the privacy of a person performing a public function is allowed with regard to information related to the performance of a public function, including the terms of entrusting and performing functions.
We are not dealing here with the protection of privacy. Because announcements about recruitment for clerical positions are public. Published in the Public Information Bulletin. In each of the advertisements, the "scope of tasks performed in the position" is indicated.
Therefore, it is not possible to link the scope of activities only to personal files and indicate that it constitutes an integral part of the employment contract. This is because it is an activity secondary to the scope of activities presented in the announcement of recruitment for a vacant official post. Unless after the employment of such a person, the scope of activities changes in relation to the posted one.
Considering the above, the Authority should provide the requested information or issue a negative decision - which was not the case in the case at hand.
So in this case we are dealing with inaction and a gross violation of the law by the Mayor of the City of Lubartów - Janusz Bodziacki.