NSA - III OSK 25287/21

NSA - III OSK 25287/21
Court:	NSA (Poland)
Jurisdiction:	Poland
Relevant Law:	Article 6(1)(c) GDPR Article 86 GDPR Article 149 § 1a p.p.s.a Article 3 § 2(8) p.p.s.a Article 70 of the Act on the Protection of Personal Data
Decided:	16.11.2022
Published:
Parties:
National Case Number/Name:	III OSK 25287/21
European Case Law Identifier:
Appeal from:	WSA Warsaw (Poland) II SAB/Wa 550/19
Appeal to:	Unknown
Original Language(s):	Polish
Original Source:	NSA (in Polish)
Initial Contributor:	n/a

The Polish Supreme Administrative Court ruled, taking into account Article 86 GDPR, that the Polish DPA could not overrule a court decision ordering the Parliament to comply with a request for disclosure of public information.

English Summary

Facts

On 25 January 2018, the plaintiff filed a request with the Parliament (the defendant) to access the list of candidates for the National Council of the Judiciary. The documents requested contained a list of citizens supporting a given application and/or lists of judges supporting a given application. By decision of 27 February 2018, the defendant refused to comply with the request. The plaintiff appealed this decision to the Court of First Instance.

The Court of First Instance ordered the defendant to comply with the request to access document, but only after having anonymised the judges' personal identification number (PIN). The Court held that the PIN was not related to the public function performed by the judges, and therefore should not be made available.

During the Court of First Instance proceedings, the Polish DPA initiated ex officio proceedings concerning the same matter and ordered the defendant (the controller) to restrict any further processing of personal data, including refraining from making them publicy available in any form.

After not having received any information several months after the decision of the Court of First Instance, the plaintiff started proceedings regarding inaction by the defendant. As a result, the Court of Second Instance ordered the defendant again to comply with the request. The defendant filed a cassation appeal before the Supreme Administrative Court. The main argument of the defendant was the DPA decision, which contrary to the Court of First Instance order, prohibited the defendant from disclosing the information.

In the cassation appeal, the Court considered whether the information ought to be disclosed and whether a DPA decision to not comply with a public information access request could overturn a court judgement on the same matter.

Holding

The Supreme Administrative Court ruled that the Court of First Instance exercised the constitutional right to control the activity of public administration and ruled legally that the disclosure of lists of candidates and supporting judges, with the exception of their PIN - would constitute lawful processing of personal data. Therefore, the DPA was not in a position to overrule this judgement.

The Supreme Administrative Court also referred to Article 86 GDPR, which provides Member States the possibility to reconcile the right to protection of personal data and the right of access to public information. Thus, the defendant had no grounds to recognise the legitimacy of the DPA decision and use it as a lawful reason to not comply with the Court of First Instance order.

As a conclusion, the Court held that the judgement of the Court of First Instance was lawful and that the defendant had to disclose the requested documents. Subsequently, the Court dissmissed the cassation appeal.

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English Machine Translation of the Decision

The decision below is a machine translation of the Polish original. Please refer to the Polish original for more details.

Date of judgment

2022-11-16 final judgment

Date of receipt

2021-01-04

Court

The Supreme Administrative Court

Judges

Olga Żurawska - Matusiak /chairman/
Przemysław Szustakiewicz /rapporteur/
Slawomir Pauter

Symbol with a description

6480
658

Thematic keywords

Other

Ref. linked

II SAB/Wa 550/19 - Judgment of the Provincial Administrative Court in Warsaw of 2019-10-02

The complained authority

Prime Minister

Result content

The cassation appeals were dismissed

Referenced regulations

OJ 2018 item 1302 art. 125 § 1 point 1, art. 286 § 2, art. 149 § 1a
Act of 30 August 2002 Law on proceedings before administrative courts - consolidated text

Sentence

The Supreme Administrative Court composed of: Chairman: Supreme Administrative Court Judge Olga Żurawska-Matusiak Judges: Supreme Administrative Court Judge Przemysław Szustakiewicz (complaint) Judge del. WSA Sławomir Pauter, after considering on November 16, 2022, at a closed session in the General Administrative Chamber, cassation complaints of the Chancellery of the Sejm of the Republic of Poland and K.G. from the judgment of the Provincial Administrative Court in Warsaw of October 2, 2019, file ref. II SAB/Wa 550/19 in the case filed by K.G. on the inactivity of the Chancellery of the Sejm of the Republic of Poland regarding the provision of public information, dismisses cassation complaints

Justification

The Provincial Administrative Court in Warsaw, in its judgment of October 2, 2019, file ref. II SAB/Wa 550/19, after examining the case filed by the K.G., obliged the Chancellery of the Sejm of the Republic of Poland to consider the motion of K.G. of January 25, 2018, for public information to be made available within 14 days from the date of delivery of the final judgment together with the case files (item 1); stated that the body's inaction had not occurred in gross violation of the law (item 3); in the remaining scope, it dismissed the complaint (item 4) and ordered the authority to reimburse the costs of the proceedings to the complainant. The justification indicated the following factual and legal status of the case:

By application of January 25, 2018, K.G. applied to the Chancellery of the Sejm of the Republic of Poland for access to public information in the form of attachments to the applications of candidates to the National Council of the Judiciary, i.e. lists of citizens supporting a given application and/or a list of judges supporting a given application.

Then, by decision of February 27, 2018, the head of the Chancellery of the Sejm refused to disclose public information regarding attachments to the applications of candidates for members of the National Council of the Judiciary, both in terms of lists of citizens and lists of judges supporting the applications.

The Provincial Administrative Court in Warsaw, judgment of August 29, 2018, file ref. II SA/Wa 484/18, repealed the decision of the Head of the Chancellery of the Sejm of February 27, 2018 in the part refusing to provide attachments to the applications of candidates for members of the National Council of the Judiciary, including the lists of judges supporting the applications. The Court indicated that the list of judges supporting the applications of candidates to the National Court Register should be made available after prior anonymization of the PESEL registration number of a judge who is not related to the public function performed, and therefore should not be made available.

The Supreme Administrative Court, in its judgment of June 28, 2019, file ref. I OSK 4282/18 dismissed the cassation appeal of the Head of the Chancellery of the Sejm of the Republic of Poland, which resulted in the judgment of the Provincial Administrative Court in Warsaw of August 29, 2018, file ref. no. II SA/Wa 484/18. In the justification of the decision of the Supreme Administrative Court, i.a. pointed out that: "(...) Since the attachments to the application of candidates to the National Court Register, which include a list of judges supporting the application of the candidate to the National Court Register, constitute public information, the refusal to disclose this type of public information would require the existence of a clear substantive legal norm in the legal system constituting the basis for such Such a standard is not included in Article 11c of the Act of 12 May 2011 on the National Council of the Judiciary (Journal of Laws of 2018, item 389, as amended) relating to the mode of providing information referred to therein at a certain stage of the procedure for submitting candidates to the National Court Register, and therefore this provision could not be effectively invoked as containing the basis for questioning the right of access to public information, i.e. the right to obtain access to the above-mentioned attachments, and thus the right to familiarize oneself with the content of these documents" .

On July 19, 2019, K.G. filed a complaint with the Provincial Administrative Court in Warsaw about inaction or protracted conduct of proceedings by the Chancellery of the Sejm of the Republic of Poland (authority/Chancellery of the Sejm) regarding the disclosure of public information in the form of attachments to the applications of candidates for members of the National Court Register, including lists of judges supporting the applications. There was a violation of Art. 61 sec. 1 and 2 of the Constitution of the Republic of Poland, art. Art. 13 of the Act of September 6, 2001 on access to public information (Journal of Laws of 2018, item 1330, as amended; hereinafter referred to as the "Act") in connection with art. 202b of the Rules of Procedure of the Sejm.

According to the complainant, it should be considered that starting from June 28, 2019, the Chancellery of the Sejm is obliged to immediately make public information available in the form of attachments to the applications of candidates for members of the National Council of the Judiciary. She indicated that the requested public information - pursuant to Art. 13 sec. 1 of the Act in connection with joke. 202b of the Rules of Procedure of the Sejm - should be made available without undue delay, but not later than within 14 days from the date when the judgment of the Provincial Administrative Court in Warsaw becomes final, and therefore, in her opinion, from the date of dismissal of the cassation appeal by the Head of the Chancellery of the Sejm by the Supreme Administrative Court. She submitted that, in her opinion, the statements of the Head of the Chancellery of the Sejm (e.g. letter of 18 July 2019, no. public information, was to be counted from the date of receipt by the Chancellery of the Sejm of the judgment of the Supreme Administrative Court of June 28, 2019, together with the justification. In the complainant's opinion, it is important for the case that the judgment that repealed the decision of the Head of the Chancellery of the Sejm is the judgment of the Provincial Administrative Court in Warsaw of August 29, 2018, the justification of which contains all the necessary guidelines regarding the provision of attachments to applications of candidates for members of the National Council of the Judiciary, including lists of judges supporting the applications. This justification has been known to the Chancellery of the Sejm for almost a year and there are no arguments justifying further delay in making the requested public information available. In her opinion, the Chancellery of the Sejm grossly violated the law by failing to implement the final judgment of the Provincial Administrative Court in Warsaw of August 29, 2018 and by not providing - within the time limit provided for by law - the requested public information, and the submitted reminder for inaction or lengthy conduct of the case of the requested public information, did not bring the expected result, because the requested public information has still not been made available by the Chancellery of the Sejm.

In response to the complaint, the Chancellery of the Sejm requested that the complaint be dismissed, arguing that the final annulment of the decision of the Head of the Chancellery of the Sejm of February 27, 2018 means that the Chancellery of the Sejm is obliged to re-examine the request of January 25, 2018 for access to public information. According to Art. 13 sec. 1 of the Act, the application should be examined without undue delay, but not later than within 14 days from the date of submission of the application, subject to sec. 2 and Art. 15 sec. 2 of the act. In the circumstances of this case, this period should be counted from the date of delivery to the authority of the judgment of the Supreme Administrative Court of June 28, 2019, together with the justification. In the opinion of the Chancellery of the Sejm, the complainant's interpretation that the deadline for re-examination of the request for access to public information began to run on the date of the judgment issued by the Supreme Administrative Court is not correct. According to Art. 193 of the Act of August 30, 2002 Law on proceedings before administrative courts (Journal of Laws of 2018, item 1302, as amended, hereinafter "P.p.s.a."), the Supreme Administrative Court justifies the judgment ex officio within thirty days. The above is important in the context of Art. 153 P.p.s.a., according to which the legal assessment and indications as to further proceedings expressed in the Court's judgment are binding on the Head of the Chancellery of the Sejm in the case during the re-examination of the request for access to public information. The principle of binding the authority re-examining the case applies to both the operative part of the judgment and its justification, in which the court expresses the legal assessment of the contested act and provides the authorities with indications as to further proceedings, and "for the correct reading of the operative part of the judgment, one should be guided by its justification, which contains the court's reasoning leading to a particular decision. This means that the last day of the period for re-examination of the complainant's application under Art. 13 sec. 1 of the Act, was July 30, 2019. The complaint for inaction or lengthy conduct of the proceedings filed through the authority on July 19, 2019 is, in the opinion of the authority, premature, because as at the date of its filing, the deadline for examining the request for access to public information was still open.

In the judgment referred to at the outset, the Provincial Administrative Court in Warsaw, pursuant to Art. 149 § 1 point 1, § 1a and art. 151 P.p.s.a. considered the complaint to be upheld.

In the opinion of the Court of First Instance, determining the time limit within which the administrative body should make the requested information available depends on the correct determination of the moment constituting the beginning of that time limit. This moment is determined, in accordance with Art. 13 of the Act, the date of submission of the application. On June 28, 2019, the complainant sent a letter to the authority, in which she called for immediate consideration of her application of January 25, 2018 and making public information available to her in the form of attachments to the application of candidates for members of the National Court Register, which were received by the Chancellery of the Sejm, i.e. a list of judges supporting all candidatures. This request was repeated in letters addressed to the authority on 4 and 16 July 2019.

On June 28, 2019, the judgment of the Provincial Administrative Court in Warsaw of August 29, 2018, file ref. II SA/Wa 484/18 became final, and therefore there were no formal and legal obstacles to consider the application of January 25, 2018, because on that date the decision of the Head of the Chancellery of the Sejm of February 27, 2018 was validly eliminated from legal circulation. refusing to disclose public information.

The list of the above dates shows that the complaint of July 19, 2019 for inaction regarding the examination of the application of January 25, 2018 was submitted to the Court after the deadline obliging the authority to deal with it, which expired on July 12, 2019.

Due to the fact that the authority, both on the date of submitting the complaint for inaction and on the date of its examination, remained inactive in considering the application of January 25, 2018, the Provincial Administrative Court in Warsaw, based on Art. 149 § 1 point 1 P.p.s.a., obliged to consider it within 14 days from the date of delivery of the final judgment together with the case files, and pursuant to Art. 149 § 1a P.p.s.a. stated that the inaction of the authority did not take place in gross violation of the law. The authority, because it corresponded with the complainant and presented its position regarding formal and legal obstacles in examining the application. For this reason, the requested fine was not imposed on the authority, and therefore the complaint in this respect was dismissed. The statement that inaction took place in flagrant violation of the law as a means of repression should be used with caution and only in situations that raise no doubts.

A cassation appeal against the above judgment was filed by the Chancellery of the Sejm of the Republic of Poland, requesting that the contested judgment be set aside in its entirety and the case be remitted to the Voivodeship Administrative Court in Warsaw for re-examination, the costs of the proceedings, including the costs of legal representation in accordance with the provisions of law, and also the suspension of the proceedings ( Article 125 § 1 item 1 P.p.s.a.) due to the fact that the resolution of the case depends on the outcome of other pending proceedings, i.e.:

a) proceedings initiated by the President of the Office for Personal Data Protection by the decision of July 29, 2019, reference number: [...] on the initiation of ex officio proceedings against the Chancellery of the Sejm regarding the processing of personal data of judges included in the list of judges supporting the nominations of candidates to the National Council of the Judiciary, under which the decision of July 29, 2019, reference number: [...] was issued, obliging the Chancellery of the Sejm to limit the processing of personal data of judges included in the lists of judges supporting the nominations of candidates to the National Council of the Judiciary, by ordering to refrain from their making it public and making it available in any form to other entities until the decision concluding the proceedings in this case is issued,

b) administrative court proceedings - initiated by complaints against the decision referred to in point and above, pending before the Provincial Administrative Court in Warsaw on the complaint of K.G. (file no. II SA/Wa 1927/19), the Foundation [...] (file no. II SA/Wa 2153/19) and the Ombudsman (file no. II SA/Wa 2148/19);

c) proceedings before the Constitutional Tribunal - instituted at the request of a group of deputies of December 2, 2019, file ref. K 21/19 for a statement that the provision of Art. 11c of the Act on the National Council of the Judiciary, understood in the sense that this provision does not prohibit the provision of public information in the form of a list of judges supporting the nomination of a candidate for a member of the National Council of the Judiciary elected from among judges, is inconsistent with Art. 2, art. 47 and Art. 51 of the Constitution of the Republic of Poland.

The judgment under appeal was alleged to have violated:

1. article 286 § 2 P.p.s.a. by not applying it and, as a consequence, erroneously recognizing that the deadline for settling the case by the administrative authority, in this case for examining the applicant's request for access to public information, started to run on June 28, 2019, i.e. on the date of issuing the judgment of the Supreme Administrative Court, reference number I OSK 4282/18 dismissing the cassation complaint against the judgment of the Provincial Administrative Court in Warsaw of August 29, 2018, file ref. II SA/Wa 484/18, which has become final;

2nd article 153 P.p.s.a. through improper performance of the obligation to carry out a legal assessment of an administrative decision omitting an important premise regarding the protection of personal data of judges supporting candidates for members of the National Council of the Judiciary resulting from the GDPR and resulting in incorrect determination of the facts of the case, omitting the fact that the President of the Office for Personal Data Protection issued a security decision, pursuant to art. . 70 of the Act of 10 May 2018 on the protection of personal data (Journal of Laws of 2019, item 730), referred to in point 4 of the applications below;

3. article 151 P.p.s.a. by failing to apply this provision when the complaint should be dismissed.

No response to the cassation complaint was filed.

A cassation appeal against the above judgment in the scope of points 2 and 3, i.e. in the part stating that the inaction of the authority did not take place in gross violation of the law and in the part dismissing the complaint in this regard, was filed by the complainant, demanding that the contested judgment be set aside in the contested part, complaint in this regard by stating that the inaction of the authority took place in gross violation of the law and imposing a fine on the authority in the maximum amount specified in Art. 154 § 6 P.p.s.a. and to order the authority to pay the costs of the proceedings, including the costs of legal representation in accordance with the prescribed standards. The contested judgment was alleged to have violated:

1. article 149 § 1a P.p.s.a in connection with art. 3 § 2 point 8 P.p.s.a. and a statement that the inactivity of the authority did not take place in gross violation of the law, assuming as the basis for the decision only the state of inactivity of the authority existing at the time of lodging the complaint to the court, and not at the time of adjudication, in a situation where the authority, both before lodging the complaint, and in a glaring manner also after its submission, grossly violated the law, including the basic constitutional principles of the Republic of Poland, which should be taken into account by the court of first instance;

2nd article 149 § 1a P.p.s.a in connection with art. 3 § 2 point 8 P.p.s.a. and Art. 61 sec. 3 and Art. 184 of the Constitution of the Republic of Poland by recognizing that the inactivity of the authority in considering the application of January 25, 2018 did not take place in gross violation of the law, because the authority corresponded with the complainant before lodging the complaint and presented its position regarding formal and legal obstacles in examining the application, in a situation where the Court of First Instance omitted the circumstances of disregarding by the authority binding final judgments of administrative courts, including the rights and obligations established by these judgments, and the authority recognizing that the President of the Personal Data Protection Office is the authority authorized to order the authority to refrain from executing final judgments of the courts administrative (decision of the President of the UODO of 29 July 2019, obliging the authority to limit the processing of personal data of judges included in the lists of judges supporting the applications of candidates to the National Council of the Judiciary, by ordering to refrain from making them public and making them available in any form to other entities until a decision is issued by the President of the Personal Data Protection Office). The first-instance court completely omitted the fact that the authority had knowledge that both the Provincial Administrative Court in Warsaw in its judgment of August 29, 2018 (reference number II SA/Wa 484/18) and the Supreme Administrative Court in its judgment of August 28, 2018 June 2019 (I OSK 4282/18) - exercising the constitutional right to control the activities of public administration - legally and legally binding for the body, ruled that the access by the body, under the procedure of access to public information, requested by the complainant attachments to applications of candidates for members of the National of the Judiciary Council, including lists of judges supporting the applications - excluding judges' PESEL numbers - will constitute lawful processing of personal data, and thus the right to request such public information is not limited, and the authority is obliged to respect this right unconditionally;

3. article 149 § 1a P.p.s.a in connection with art. 3 § 2 point 8 P.p.s.a. and Art. 6 sec. 1 lit. c) and Art. 86 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/W (GDPR), as well as article 70 sec. 1 and 2 of the Act on the Protection of Personal Data - by recognizing that the inactivity of the authority in considering the application of January 25, 2018 did not take place in gross violation of the law, because the authority corresponded with the complainant before lodging the complaint and presented its position regarding formal obstacles in considering the application, in a situation where the Court of first instance completely omitted the circumstances that after the announcement of the Supreme Administrative Court's judgment of June 28, 2019 (I OSK 4282/18), the authority could not have any doubts that the authority, as the administrator of personal data, there is an obligation to provide this data in the manner specified in the final judgments of the Provincial Administrative Court in Warsaw of August 29, 2018 (reference number II SA/Wa 484/18) and the Supreme Administrative Court of June 28, 2019 (I OSK 4282/18), and the GDPR does not limit the possibility of disclosing personal data, as long as this data constitutes public information, which in this case has been decided by the indicated judgments. Thus, the Court of first instance omitted the fact that the authority had no grounds to recognize the legitimacy of the decision of the President of the UODO of July 29, 2019 and refer to this provision as preventing the authority from disclosing the public information requested by the complainant;

4. article 149 § 1a P.p.s.a. in connection with Art. 3 § 2 point 8 P.p.s.a., art. 13 sec. 1 and 2 of the Act in connection with Art. 202b of the Rules of Procedure of the Sejm, by recognizing that the body's inactivity in considering the application of January 25, 2018 did not constitute a gross violation of the law, as prior to the filing of the complaint, the body corresponded with the complainant and presented its position regarding formal and legal obstacles in considering the application, in a situation where the Court of first instance omitted the fact that the authority, after the announcement of the judgment of the Supreme Administrative Court of June 28, 2019 (I OSK 4282/18), had no grounds to believe that any public administration body is entitled to order the body to refrain from disclosing the public information requested by the complainant, thus failing to take into account the fact that the body did not had no grounds to believe that the action of any public administration body would prevent the requested information from being made available within the time limits specified in Art. 13 sec. 1 of the Act and will make it necessary to apply the standard provided for in Art. 13 sec. 2 of the Act;

5. art. 149 § 1a P.p.s.a. in connection with Art. 3 § 2 point 8 P.p.s.a. and art. 170 P.p.s.a. - by recognizing that the inactivity of the authority in considering the application of January 25, 2018 did not take place in gross violation of the law, because the authority corresponded with the complainant before lodging the complaint and presented its position regarding formal and legal obstacles in examining the application, in the event of omission by the Court of First Instance that the authority, justifying the failure to consider the applicant's application, indicated that the lack of access to the public information requested by the applicant results from the authority's compliance with the order of the President of the Personal Data Protection Office of July 29, 2019, despite the fact that both the authority, as well as the President of the UODO, are bound by the final judgments of the Provincial Administrative Court in Warsaw of August 29, 2018 (reference number II SA/Wa 484/18), as well as the Supreme Administrative Court of June 28, 2019 (I OSK 4282/18) which unequivocally determined both the status of the information requested by the applicant and the manner in which it was made available to the applicant;

6. art. 149 § 2 P.p.s.a. in connection with Art. 3 § 2 point 8 P.p.s.a. by dismissing the complaint regarding the request to impose a fine on the authority in the maximum amount specified in Art. 154 § 6 P.p.s.a., assuming as the basis for the decision only the state of inaction of the body existing at the time of lodging the complaint to the court, and not at the time of adjudication, in a situation where in this case the body, both before lodging the complaint, and in a clear way also after its lodging, grossly violated the law, including the basic constitutional principles of the Republic of Poland;

7. art. 149 § 2 P.p.s.a. in connection with Art. 3 § 2 point 8 P.p.s.a. and Art. 61 sec. 3 and Art. 184 of the Constitution of the Republic of Poland by failing to apply them when assessing the degree of inaction and by dismissing the complaint regarding the request to impose a fine on the authority in the maximum amount specified in Art. 154 § 6 P.p.s.a. assuming as the basis for the decision only the state of inactivity of the body existing at the time of lodging the complaint to the court, and not at the time of adjudication, in a situation where the court of first instance omitted the fact that in this case there is a need to discipline the body, in the face of blatant and ostentatious disregard of legally binding judgments by the body administrative courts and thus violation by the authority of the citizen's right to access public information, which right has been confirmed by final judgments of administrative courts, clearly indicating that the requested information is public information, and its disclosure by the authority will constitute the lawful processing of personal data;

8. art. 149 § 2 P.p.s.a. in connection with Art. 3 § 2 point 8 P.p.s.a. and Art. 6 sec. 1 lit. c) and Art. 86 GDPR as well as Art. 70 sec. 1 and 2 of the Act on the Protection of Personal Data by not applying them when assessing the degree of inaction and dismissing the complaint regarding the request to impose a fine on the authority in the maximum amount specified in art. 154 § 6 P.p.s.a. assuming as the basis for the decision only the state of inaction of the authority existing at the time of lodging the complaint with the court, and not at the time of adjudication, in the situation where the court of first instance omitted the fact that in this case the authority flagrantly disregarded the final judgments of the administrative courts and the applicable provisions of law, and considered that there are doubts as to the possibility of processing personal data in connection with the provision of the requested public information, despite the fact that on the basis of final judgments of administrative courts it is obvious that the disclosure of information in the manner specified by these judgments will constitute the lawful processing of personal data and there are no grounds to any substantiation that the disclosure of the requested public information in the manner specified in the final judgments of administrative courts could violate the provisions on the protection of personal data;

9. art. 149 § 2 P.p.s.a. in connection with Art. 3 § 2 point 8 P.A.S.A., Art. 13 sec. 1 and 2 of the Act in connection with Art. 202b of the Rules of Procedure of the Sejm - by dismissing the complaint regarding the request to impose a fine on the body in the maximum amount specified in Art. 154 § 6 P.p.s.a. assuming as the basis for the decision only the inactivity of the body existing at the time of lodging the complaint with the court, and not at the time of adjudication, in a situation where the court of first instance omitted the fact that in this case, in view of the existence of final judgments of the Provincial Administrative Court in Warsaw of August 29, 2018 (file no. II SA/Wa 484/18) and the Supreme Administrative Court of June 28, 2019 (I OSK 4282/18), the authority had no grounds to believe that any public administration authority is entitled to order the authority to refrain from from promptly providing the requested public information;

10. art. 149 § 2 P.p.s.a. in connection with Art. 3 § 2 point 8 and art. 170 P.p.s.a. by dismissing the complaint regarding the request to impose a fine on the authority in the maximum amount specified in Art. 154 § 6 P.p.s.a. assuming as the basis for the decision only the state of inactivity of the body existing at the time of lodging the complaint with the court, and not at the time of adjudication, in a situation where the court of first instance omitted the circumstances that in this case there is a need to firmly discipline the body, in view of gross disregard by the body of binding and other state authorities of final judgments of administrative courts.

No response was filed to the above cassation appeal.

The Supreme Administrative Court considered as follows:

According to Art. 183 § 1 P.p.s.a., the Supreme Administrative Court hears the case within the limits of the cassation appeal, but considers the invalidity of the proceedings ex officio. In the present case, there are no enumerated 183 § 2 P.p.s.a., the conditions for the invalidity of administrative court proceedings. For this reason, when examining the case, the Supreme Administrative Court was bound by the limits of the cassation appeal. These limits are determined each time by the grounds indicated in the cassation appeal, which - in accordance with Art. 174 P.p.s.a. - may be:

1) violation of substantive law through its incorrect interpretation or improper application,

2) violation of the provisions of the procedure, if this violation could have a significant impact on the outcome of the case.

The Supreme Administrative Court is bound by the limits of the cassation appeal, which means that it is competent to examine the violation of only those provisions that have been clearly indicated by the complaining party. Due to the limitations resulting from the indicated legal regulations, the Supreme Administrative Court cannot specify the allegations of a cassation appeal on its own, specify them or correct them in any other way.

Pursuant to Art. 184 P.p.s.a., the Supreme Administrative Court dismisses a cassation appeal if there are no justified grounds or if the appealed decision complies with the law despite incorrect justification.

It follows from the disposition of this norm that the dismissal of the cassation appeal is a consequence of the court finding it groundless. A cassation appeal is unfounded also when the judgment itself is lawful and only its justification is incorrect. This also applies to the case when the justification for a correct decision is only partially incorrect (cf. e.g. judgments of the Supreme Administrative Court of May 17, 2011, file reference number I OSK 113/11; of January 20, 2006, file reference number I OSK 344/05 and reference number I OSK 345/05). The ruling complies with the law despite the incorrect justification, when there is no doubt that after removing the errors contained in the justification, the sentence would not change. Also in a situation where the court of the first instance incorrectly interpreted the provisions of substantive law in the justification of the judgment, there are no grounds to set aside the contested judgment if its operative part is correct (judgment of the Supreme Administrative Court of February 3, 2011, reference number II GSK 221/10 ).

Considering the cassation appeal lodged by the Chancellery of the Sejm in the present case within the limits outlined in this way, it should be stated that there were no grounds to consider it, although the grounds of the appealed judgment are partially incorrect.

It will be followed by the reasons for the dismissal of the cassation appeal. At the outset, it should be noted that the Supreme Administrative Court found that there are no grounds for a positive resolution of the motion of the Chancellery of the Sejm to suspend the administrative court proceedings. The authority complaining in cassation believes that the suspension of the proceedings is justified for two reasons: firstly, in connection with the pending administrative and court-administrative proceedings regarding the decision of the President of the Personal Data Protection Office of July 29, 2019 obliging the Chancellery of the Sejm to limit the processing of personal data of judges contained in the lists of judges supporting the nominations of candidates to the National Council of the Judiciary, by ordering to refrain from making them public and making them available in any form to other entities until the decision terminating the proceedings in this case is issued. And secondly, in connection with the proceedings before the Constitutional Tribunal - pending under reference no. ref. no. K 21/19 for declaring the constitutionality of Art. 11c of the Act on the National Council of the Judiciary.

As regards the issue of initiating administrative proceedings, and then administrative court proceedings, by the decision of the President of PUODO of July 29, 2019, it should be indicated that pursuant to Art. 125 § 1 point 1 P.p.s.a. the court may suspend the proceedings ex officio if the resolution of the case depends on the outcome of another pending administrative, court-administrative, court, before the Constitutional Tribunal or the Court of Justice of the European Union. It follows from the content of the provision in question that the suspension of the proceedings for the reasons enumerated in Art. 125 § 1 point 1 P.p.s.a. at the discretion of the court. The resolution of this issue must therefore be important from the point of view of achieving the objective of the administrative court proceedings and should have a direct impact on the outcome of these proceedings. The judicature emphasizes that this provision applies when the adjudicating court is not competent to independently resolve issues that emerged or arose in the course of court proceedings (cf. resolution of the Supreme Administrative Court of November 24, 2008, reference number II FPS 4 /08, published by ONSAiWSA from 2009, No. 4, item 62). Suspension of the proceedings should also be justified by expediency, fairness and procedural economy. When deciding on the suspension of the proceedings, the court should also assess all the premises in the context of the need to hear the case without undue delay, which is important in the light of Art. 45 sec. 1 of the Constitution of the Republic of Poland and stipulated in art. 7 of the P.p.s.a. principle of speedy administrative court proceedings. In the opinion of the Supreme Administrative Court, it is not necessary to suspend the administrative court proceedings until the final conclusion of the proceedings on obliging the Chancellery of the Sejm to limit the processing of personal data, because it concerns a matter related to the processing of personal data, and not access to public information. Moreover, the provision of Art. 11c of the Act on the National Council of the Judiciary was examined several times by the Supreme Administrative Court, which unequivocally ruled that the data of judges signing lists of support for candidates for the so-called Neo-KRS, excluding their PESEL number - constitute public information (judgment of May 26, 2022, reference number III OSK 1291/21, of January 11, 2022, reference number III OSK 929/21 and of June 28, 2019, file reference number I OSK 4282/18), and art. 5 sec. 2 of the Act applies to these data - does not apply.

Nor can it be considered that the initiation of proceedings before the Constitutional Tribunal in case No. K 21/19 may be the basis for suspending the proceedings by the Supreme Administrative Court. It should be pointed out that since December 3, 2015, persons (currently M. Muszyński, J. Piskorski and J. Wyrembak) appeared in the Constitutional Tribunal, appointed to this post of judge in violation of the provisions of the Constitution of the Republic of Poland, because they took up positions in place of duly appointed judges. Illegality of assuming the position of a judge of the Constitutional Tribunal by the above-mentioned was confirmed both by the judgment of the Polish Constitutional Tribunal of December 3, 2015, file ref. K 34/15, as well as the judgment of the European Court of Human Rights of May 7, 2021 in the case of Xero Flor Sp. z o. o. against Poland, ref. 4907/18. The presence of incorrectly appointed judges in the composition of the Constitutional Tribunal means that the entire Polish Constitutional Court has been "infected" with illegality, and thus has lost its ability to adjudicate lawfully in a material sense, because there is a high degree of probability that at least one of the so-called . doubles. In such a situation, the suspension of the administrative court proceedings and relying on "blind chance" that perhaps one of the "understudies" will not be present in the panel adjudicating in case K 21/19 is too high a risk for the Supreme Administrative Court to wait for a ruling TK. Moreover, the already mentioned Art. 45 sec. 1 of the Constitution of the Republic of Poland in connection with joke. 7 P.p.s.a. order to settle the matter as soon as possible. Meanwhile, it is common knowledge, also confirmed in the annual reports of the Constitutional Tribunal, that the Polish Constitutional Court is currently examining cases extremely slowly, and some applications have been waiting for a ruling for more than five years. Hence, suspending the administrative court proceedings and waiting for a possible ruling of the Constitutional Tribunal actually means a significant, perhaps many years, prolongation of the proceedings. Meanwhile, it is obvious that in matters relating to access to public information, the issue of obtaining the requested information by the applicant as soon as possible is of great importance, because in the modern world the value of data is also (if not primarily) determined by their timeliness. The case at the request of K.G. was initiated on January 25, 2018, when it submitted an application to the authority for access to public information. So it's been four years now. In the event of the lack of efficiency of the Constitutional Tribunal, the suspension of the administrative court proceedings due to the pending case before it - will result in even longer waiting for the resolution of the application of January 25, 2018. This may in fact lead to a situation where, even if the application is implemented - the disclosed information will become worthless , which is in contradiction with the assumptions of the Act on access to public information, which is structured in such a way, even through short deadlines for providing information, that the applicant receives the most valuable information, and therefore also up-to-date.

Moving on to the allegations of the body's cassation appeal, it should be noted that the allegation of insulting Art. 153 P.p.s.a. is completely unjustified. The body complaining in cassation seems to associate the violation of this provision with the issuance by the President of the UODO of a decision of 29 July 2019 obliging the Chancellery of the Sejm to limit the processing of personal data of judges included in the lists of judges supporting the nominations of candidates to the National Council of the Judiciary. It should be recalled that pursuant to Art. 153 P.p.s.a. the legal assessment and indications as to further proceedings expressed in the court's decision are binding in the case on this court and the authority whose action, inaction or lengthy conduct of the proceedings was the subject of the appeal. This provision clearly applies to a situation in which an administrative court has issued a final decision which is binding on other courts and adjudicating bodies in the case. In no way does it concern the "binding" of a court by an act of a public administration body. Hence, in a situation where the President of the UODO issued a security decision, the Provincial Administrative Court in Warsaw was not bound by it.

The allegation of violation of Art. 151 P.p.s.a. The construction of this provision, which states that if the complaint is not upheld in whole or in part, the court dismisses the complaint in whole or in part, respectively, proves that this provision is consequential in nature. It is a form of "instructions" for the Court on how it should proceed (what decision to issue) when it finds that the complaint does not deserve to be considered. Dismissal of a complaint against a decision or order of an authority is always the result of an assessment that the administrative act subject to the review of the court of first instance complies with the provisions of substantive law in force on the date of its adoption, specifying the rights and obligations of the parties, and procedural provisions regulating the rules of conduct before public administration bodies. This means that a violation of Art. 151 P.p.s.a. in each case, it is a consequence of a breach of other substantive or procedural provisions, which the author of the cassation appeal should clearly indicate in the appeal. The author of the cassation appeal, wishing to invoke the allegation of infringement of the result provisions, is obliged to directly link this allegation with the infringement of other specific provisions, which, in his opinion, the court of first instance violated. It must always point to the provisions incorrectly applied by the authorities, because only when the authority violates the law can it be correctly assumed that the judgment of the court of first instance is defective, as it accepts the defects of administrative proceedings. In the present case, the author of the cassation complaint raising the allegation of violation of Art. 151 P.p.s.a. did not invoke any other provisions which the Court of First Instance had violated by dismissing the complaint. The justification of the cassation appeal also lacks a more detailed development and explanation of the allegation formulated in this way, which makes it ineffective.

However, the allegation that the Provincial Administrative Court in Warsaw infringed Art. 286 § 2 P.p.s.a. by not applying it and, as a consequence, erroneously recognizing that the deadline for settling the case by the administrative authority, in this case, the examination of the request for access to public information, began to run on June 28, 2019, i.e. on the date of issuing the judgment of the Supreme Administrative Court, reference number act I OSK 4282/18. There is no doubt in the jurisprudence that according to Art. 286 P.p.s.a. after the decision of the court of first instance becomes final and binding, the administrative files of the case are returned to the public administration body, enclosing a copy of the decision with a statement of its legal validity. The deadline for settling the matter by the administrative authority, specified in the law or set by the court, is counted from the date of delivery of the files to the authority. This provision establishes general deadlines for settling an administrative case after a court judgment repealing the challenged act. It thus establishes the principle of "reasonable possibility" of executing a court judgment. It is obvious that the authority must dispose of the case files in a way that can be resolved, and therefore complete files. Only then begins to run the time limits for settling the case, set out in the procedural provisions, including art. 13 sec. 1 of the Act, and failure to comply with them may result in, among others: imposition of a fine on the authority. The above is also justified due to the fact that the legal assessment that the authority is obliged to take into account results from the justification of the judgment and the mere announcement of the judgment does not yet allow the authority to comply with it (cf. judgments of the Supreme Administrative Court of October 30, 2012, file ref. I FSK 946/12; of July 30, 2014, file reference number I OSK 882/14; of November 25, 2016, file reference number II FSK 2541/14). Hence, the Court of First Instance incorrectly assumed that the time limit for settling the case began to run when the judgment of the Provincial Administrative Court in Warsaw of August 19, 2018, file ref. no. II SA/Wa 484/18 became final, i.e. on June 28, 2019, when the Supreme Administrative Court, in its judgment in case no. I OSK 4292/18 dismissed the cassation complaint, and therefore the deadline for settling the case expired on July 12, 2019. Meanwhile, according to the files of the case no. II SA/Wa 484/18, the administrative files were delivered to the Chancellery of the Sejm on August 5, 2019 (card No. 206 of the court and administrative files of the case No. II SA/Wa 484/18), which means that the 13 sec. 1 of the Act, a fourteen-day deadline for processing the application of K.G. for disclosure of public information expired on August 19, 2019.

Nevertheless, despite such an erroneous reading by the Provincial Administrative Court in Warsaw of the content of 286 § 2 P.p.s.a. the judgment is correct because, according to its operative part and the content of the justification (p. 7 of the justification), the Chancellery of the Sejm did not provide the applicant with the requested public information until the date of the resolution of the case. In such a situation, the inactivity of the body is obvious, and therefore the Court of First Instance, despite the incorrect determination of the date from which the body was inactive - correctly recognized that the Chancellery of the Sejm is inactive and ordered it to consider the request of January 25, 2018 for access to public information, within 14 days from the date of delivery of the final judgment together with the case files. The judgment of the Court of First Instance, despite partially incorrect justification, is therefore in accordance with the law.

It should be noted, however, that to the extent to which the Provincial Administrative Court in Warsaw gave a decisive opinion on the provisions of the procedural law with regard to the period from which the authority remained inactive, it should be considered that this position is not binding on the administrative authorities adjudicating in the case. On the other hand, the authorities are bound by the interpretation of the law made by the Supreme Administrative Court. Nevertheless, the decision of the Court of First Instance itself was correct.

In this state of affairs, pursuant to Art. 184 P.p.s.a. The Supreme Administrative Court ruled as in the sentence, dismissing the cassation appeal of the Chancellery of the Sejm.

In the cassation appeal, K.G. based on both grounds indicated in Art. 174 points 1 and 2 P.p.s.a. violation of procedural norms as well as provisions of substantive law was alleged. However, the allegations, both those of a procedural nature, as well as those concerning the norms of substantive law, in fact oscillate around the recognition by the Provincial Administrative Court in Warsaw that the inactivity of the body in the field of providing access to public information was not gross, and thus no fine was imposed on the Chancellery of the Sejm in the maximum the amount specified in Art. 154 § 6 P.p.s.a. This complaint is not valid.

It should be recalled that pursuant to Art. 149 § 1a P.p.s.a. When accepting a complaint about inaction or lengthy conduct of proceedings, the court at the same time determines whether the inactivity of the authority or lengthy conduct of proceedings by the authority occurred in gross violation of the law. Therefore, the legislator grants the administrative court discretion in assessing the nature of inaction. It does not define the concept of "gross infringement of the law" adopted in the quoted provision. The judicature primarily emphasizes that the term "in gross violation of the law" used in Art. 149 § 1a P.p.s.a., although it cannot be identical with the interpretation of this phrase contained in art. 156 § 1 point 2 of the Code of Administrative Procedure, although it has the same wording and in both cases it is a significant breach of the applicable law, it allows for some generalizations appropriate to both of them (see, among others, the judgment of the Supreme Administrative Court of May 6, 2014, reference number act I OSK 153/14). In addition, a number of cases of gross inaction are indicated, which usually include a very long period of conducting the case, which is not justified either in its complexity, or in the need to conduct extensive evidence proceedings, or in the number of cases to be dealt with by the authority, or in the number of lawsuit requests submitted by the parties (see, for example, the judgments of the Supreme Administrative Court of January 10, 2014, file reference number II OSK 2426/13; of June 13, 2013, file reference number II OSK 3059/12; Provincial Administrative Court in Gliwice of April 26, 2013. , reference number II SAB 10/13). It should be emphasized, however, that these criteria should always be related to the state of specific cases, the circumstances of which are usually varied. Therefore, the issue of the nature of inaction must be assessed through the prism of the type and state of a given case, because, for example, a situation in which a case is not dealt with due to incorrect actions of the authority resulting from the assessment of the party's application is not considered as inaction in flagrant violation of the law (this is how the Supreme Administrative Court in the judgment of 14 March 2013, file reference number II OSK 2806/12). A gross violation of the law is understood as a situation in which it can be stated without any doubt that the law has been violated, i.e. a situation in which the violation is obvious (cf. the judgment of the Supreme Administrative Court of June 21, 2012, reference number I OSK 675/ 12). It can be added that this is a situation in which the infringement is also significant, and therefore incompatible with the rules of a democratic state ruled by law. In the light of the jurisprudence of the Supreme Administrative Court, when assessing the nature of inaction, the nature of the case and the specificity of the procedure for settling it cannot be overlooked (cf. the judgment of the Supreme Administrative Court of 18 March 2015, reference number I OSK 585/15). The court must take into account, among other things: possible reasons "justifying" inactivity in the case (see the judgment of the Supreme Administrative Court of April 24, 2014, reference number II FSK 3614/13). Also in the legal literature it is emphasized that the administrative court should take into account all the individual circumstances of the case (see M. Jagielska, J. Jagielski, R. Stankiewicz, M. Grzywacz, art. 149, in: Law on proceedings before administrative courts. Commentary, ed. R. Hauser, M. Wierzbowski, Warsaw 2015, p. 616). In the jurisprudence of administrative courts, it has been repeatedly explained that a gross violation of the law - within the meaning of Art. 149 § 1a P.p.s.a. - is a situation in which, without any doubts and hesitation in the context of the circumstances of a given case, it can be stated that the law has been clearly violated. If the authority exceeds the statutory time limit for settling the case, whether the inactivity of the authority took place in gross violation of the law is determined not only by the subject of the case itself, but all the circumstances related to it, including the duration of the inaction (cf. the judgment of the Supreme Administrative Court of 8 July 2015, file reference number I OSK 237/15). Thus, it should be stated that inaction of a gross violation of the law takes place when the time limits set out in the law for performing a given activity have been clearly and significantly exceeded and for much longer than necessary, and at the same time there are no circumstances excluding this inaction or excessive length of the authority (cf. the judgment of the Supreme Administrative Court of July 8, 2015, reference number I OSK 1514/14).

There is no doubt that the deadline for considering the applicant's cassation application of January 25, 2018 for access to public information was exceeded in the case. The authority should have examined this application by August 19, 2019. Meanwhile, until the date of examination of the case by the Court of first instance, i.e. October 2, 2019, it did not do so. However, the delay in examining the case was not significant, and moreover resulted from the appearance of a new element in it, which was the decision of the President of the Personal Data Protection Office of July 29, 2019, which, in the opinion of the authority, prevented him from providing the complainant with the data requested in cassation, about which he kept her correspondence. Incorrect interpretation of the law, including the relationship between the judgment of the Supreme Administrative Court and the ruling of the administrative authority, does not mean that the authority's conduct was characterized by ill will, and therefore it can be attributed to the nature of "gross violation of the law". Therefore, the Court of First Instance rightly dismissed the complaint in the scope of imposing a fine on the authority.

Considering that the complainant's cassation appeal did not contain justified grounds, the Supreme Administrative Court, pursuant to Art. 184 P.p.s.a., ruled as in the operative part of the judgment.