Judgment of the Supreme Administrative Court in the dispute between the Batory Foundation and the Ordo Iuris Foundation regarding the obligation to consider a request for public information
Warsaw, 21 October 2022
The Supreme Administrative Court has issued a ruling on the Batory Foundation’s obligation to consider Ordo Iuris Foundation’s request for public information regarding the Citizens for Democracy programme carried out by the Foundation in 2013-2016 from the EEA Financial Mechanism (EEA Grants) 2009-2014. The ruling may affect the situation of many foundations in Poland.
The Supreme Administrative Court today announced two separate judgments in a case between the Stefan Batory Foundation (the ‘Foundation’) and the Ordo Iuris Institute for Legal Culture Foundation (the ‘Ordo Iuris’) concerning the Foundation’s obligation to consider Ordo Iuris’s request in relation to the Citizens for Democracy programme run by the Foundation in 2013-2016 from the EEA Financial Mechanism (EEA Grants 2009-2014). The Foundation claimed it was not obliged to consider Ordo Iuris’ request because it did not have public assets and the requested information did not relate to the performance of a public task.
The Supreme Administrative Court did not share this argumentation and ruled that the Foundation was obliged to respond to the request under the Access to Public Information Act. The judgment means that the Foundation is obliged to consider the Ordo Iuris request. However, the judgment does not imply an obligation to provide the information requested by Ordo Iuris. The Foundation, while considering the request, may provide the information or may refuse to provide it by stating that the requested information is not public information.
In the second case examined by the Supreme Administrative Court, in turn, the court dismissed the cassation appeal of the Ordo Iuris Foundation against the inaction of the Batory Foundation, finding that the Foundation, while responding to the Ordo Iuris Foundation’s letter, did not issue a decision under the Access to Public Information Act, but only informed that it was not obliged to provide information under this procedure.
What does the NSA judgment mean for the third sector?
Today’s judgment introduces a broad interpretation of the provisions of the Access to Public Information Act. In the Supreme Administrative Court’s view, every foundation in the Polish legal system performs public tasks. In the light of this ruling, a foundation that does not possess public assets also may be considered an entity obliged to provide access to public information under the Access to Public Information Act.
The court interpreted the condition of performing public tasks broadly. In the NSA’s view – irrespective of whether the foundation conducts its activities exclusively from its own funds, public collections or donations from private individuals and institutions – in view of the fact that in the light of Article 1 of the Act on Foundations it pursues socially or economically useful purposes, it may be assumed that it performs public tasks and is therefore an entity obliged to provide public information. The court held that it is not necessary to indicate a specific task in the law or the Constitution.
The court did not indicate in its ruling whether the information requested by Ordo Iuris was public information. The Batory Foundation will independently assess this issue when considering the requested.
Position of the Batory Foundation
The Foundation respects the court’s judgment and intends to comply with it. At the same time, it recalls that the Foundation’s dispute with the Ordo Iuris Foundation was not a dispute over the limits of transparency and openness. It was a legal dispute about whether – while running the Citizens for Democracy programme financed from EEA Grants under an agreement with the Financial Mechanisms Office in Brussels – the Foundation was obliged to recognise a request for information under the Act on Public Information.
The Foundation has acted and continues to act in accordance with and within the limits of the law, attaching great importance to the transparency of both its activities and transparency in public life. It publishes all information and documents relating to the purpose and manner of its activities and the distribution of the funds it administers. Where the law does not sufficiently regulate the rules, the Batory Foundation relies on accepted standards and best practices regarding transparency and accessibility. These values have also guided the Foundation in the implementation of the Citizens for Democracy programme. The Foundation while implementing the Programme published successively information on all its stages on the Programme website: www.ngofund.org.pl. It does the same while implementing currently the Active Citizens – National Fund programme (https://aktywniobywatele.org.pl/), financed from EEA and Norway Grants, as well as in the implementation of all other activities carried out with Foundation’s own funds and from funds received from its institutional and private donors (See www.batory.org.pl).
In the EEA-funded Citizens for Democracy programme, which the Foundation ran from 2013 to 2016 and of which Ordo Iuris was specifically requested information, the Foundation adhered to the highest standards of transparency and accessibility. On the programme website http://www.ngofund.org.pl the Foundation since the beginning of the programme successively published full programme documentation: a manual for applicants and grantees with application forms, grant agreements, evaluation sheets; a description of the procedure and criteria for the evaluation of applications; a list of submitted projects’ outlines; results of the formal evaluation, a list of applicants qualified for the second stage of assessment; a list of full applications; a list of projects that received funding and a list of 620 grants awarded and paid with a description of projects implemented thanks to them and a reference to the grantees’ websites. The Foundation published also a list of experts evaluating applications with their affiliations, minutes of meetings of the selection committee and the minutes of the meeting of Programme committee. The website still functions. We invite you to visit it.
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