SA/Wr - IV SA/Wr 671/22

WSA Wrocławiu - IV SA/Wr 671/22
Court:	WSA Wrocławiu (Poland)
Jurisdiction:	Poland
Relevant Law:	Article 86 GDPR Article 5(2) of the Polish Act on Access to Public Information Article 5(1) of the Polish Act on Access to Public Information
Decided:	07.03.2023
Published:
Parties:
National Case Number/Name:	IV SA/Wr 671/22
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	Polish
Original Source:	WSA (in Polish)
Initial Contributor:	kiki

Based on the national implementation of Article 86 GDPR, the Provincial Administrative Court in Wrocław held that information on a teacher's remuneration constitutes public information.

English Summary

Facts

The plaintiff made a request for access to information relating to the minutes of an inspection carried out at a school by the State Labour Inspectorate. The school’s principal (the defendant) provided the plaintiff with documents relating to the inspection. However, they did not provide certain annexes, which formed an integral part of the inspection documentation. When asked about this, the defendant explained that the missing annexes contained information on the salary of teachers. In their view, this constituted sensitive data and, for this reason, could not be shared.

The plaintiff appealed to an appeal body in the municipality. The appeal body recalled that in accordance with Article 5(1) of the Polish Act on Access to Public Information, access to public information may be restricted to ensure privacy and protect personal data. The Polish Act on Access to Public Information is one of the national laws that regulates the access to public information and the protection of personal data under Article 86 GDPR. However, the restriction under its Article 5(1) of the Polish Act on Access to Public Information does not apply to persons performing public functions (Article 5(2) Polish Act on Access to Public Information).

The appeal body held that it was crucial to determine whether a teacher qualifies as a public body or as exercising public function. Then, the protection under the GDPR with regards to their salary, would not apply. The appellate authority concluded that teachers and administrative staff do not perform public function and, therefore, their salary is protected as personal data relating to the material status of an individual under the GDPR.

The plaintiff appealed this decision in court.

Holding

The Provincial Administrative Court (the Court) in Wrocław had to decide whether a teacher qualified as a public body under administrative law to which the data protection exception of Article 5(1) of the Polish Act on Access to Public Information does not apply.

First, the Court recalled that this provision established that the right to public information is subject to restriction on grounds of the privacy of the individual or the secrecy of the entrepreneur. However, the restriction does not apply to information on persons performing public functions.

Second, the Court decided whether teachers are performing a public function. It referred to national case law on the topic and stated that any person performing activities that impact the shaping of public affairs and is of public importance shall be considered as performing public functions within the meaning of national administrative law. Teachers also contribute to the realization of the constitutional right to education which, according to Article 70(4) of the Polish Constitution, is to be performed by public bodies. Thus, the Court found that a teacher can be a person performing public function within the meaning of Article 5(2) of the Polish Act on Access to Public Information.

Third, the Court held that the definition of ‘public information’ is broad and encompasses information produced by or relating to the function of a public body. Since remuneration of a public school teacher is a manifestation of the management of public funds, it should be considered public information.

For these reasons, the Court concluded that once accepting a public function, persons also accept to be subject to a higher level of transparency in public life. While not completely cancelling out their right to protection of personal data and privacy, the Court stated that these rights must be balanced against the public interest. In the case at stake, it held that, due to the public nature of a teacher’s profession and the public nature of information on their salary, Article 5(2) of the Polish Act on Access to Public Information applies. Consequently, the annexes could not be withheld on grounds of privacy and data protection.

The Court upheld the appeal and annulled the previous decisions of the appellate body.

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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.

The Provincial Administrative Court in Wrocław composed of the following composition: Chairman: Judge Tomasz Świetlikowski (rapporteur) Judges: Judge Bogumiła Kalinowska Judge of the Provincial Administrative Court Alojzy Wyszkowski Court recorder: Ksawery Sobczak, after examining the case filed by P. P. on the decision of the Mayor of the City and Commune of Chocianów of October 10, 2022, No. WOK.1431.79.2022, on the refusal to provide public information I. repeals the contested decision and the decision of the first instance authority preceding it; II. orders the Mayor of the City and Commune of Chocianów to pay the complainant P. P. the amount of PLN 200 (in words: two hundred zlotys) as reimbursement of the costs of the proceedings.
Justification

Coming to the decision, the Court accepted the factual and legal status of the case as follows:

P. P. (hereinafter: the applicant, author of the application, party, complainant) applied to the Director of the Primary School. [...] in C. (hereinafter: the Director) with a request for access to public information, i.e. a scan of the protocol

from the inspection of the National Labor Inspectorate carried out at the School.

The director provided the applicant with the above-mentioned document.

The author of the application noticed that the document sent to him does not contain attachments, which are an integral part of it. He requested that the missing attachments be sent.

In response, the Director informed that the attachments contain sensitive data

and therefore will not be made available.

The applicant called for the information to be made available as requested or for a refusal decision.

When issuing the decision, the Director refused to disclose the information to the public

in the scope of the name tables with the remuneration of the employees of the facility and other documents attached to the inspection report. He considered that pursuant to Art. 5 sec. 1 and 2 of the Act of September 6, 2001 on access to public information (Journal of Laws of 2022, item 902, as amended - hereinafter: u.d.i.p.), the right to public information is subject to limitation on the principles set out in the law. It found that in the case the right to public information was limited due to the privacy of the persons listed in the annexes (also due to the abuse of the right to public information for private and professional purposes). He indicated that the restrictions did not include information about persons performing public functions related to the performance of their functions. He concluded that positions of a service and technical nature (without an authoritative character) are excluded from the scope of the public function. He assumed that such functions were performed by teachers

and school employees, and the disclosure of the documents requested in the case may violate their personal rights. In support of his position, he cited judgments of the Supreme Administrative Court (hereinafter: the Supreme Administrative Court) and the Constitutional Tribunal (hereinafter: the Constitutional Tribunal).

The party appealed against the Director's decision.

After examining the case in the instance mode, the Mayor of the City and Commune of Chocianów (hereinafter: Mayor, appeal body, second instance body) upheld the Director's decision in force. He emphasized that the assessment whether there were grounds for limiting the right to disclose public information in accordance with the case remains disputed

joke. 5 sec. 2 of the u.d.i.p., which states that the right to public information is subject to limitation due to the privacy of a natural person or the secret of an entrepreneur, provided that this limitation does not apply to information about persons discharging public functions related to the performance of these functions, including

on the conditions for entrusting and performing functions, and the case when a natural person or entrepreneur waives their right. He stressed that the dispute requires a determination as to whether teachers are persons performing public functions.

In the opinion of the Mayor, information on the amount of earnings marked by name

and surnames of a natural person are included in personal data subject to protection under the rules set out in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons in connection with

with the processing of personal data and on the free movement of such data and repealing Directive 95/46 / EC (Journal of Laws UE L. 119 1. - hereinafter: GDPR). According to the Mayor, these data concern the material status of a natural person, therefore they relate to their privacy, which enjoys extensive protection against disclosure to third parties.

The appellate body decided that in the case it was impossible to assume that the teacher was a public official with regard to whom the protection of privacy was excluded. He referred to the judgment of the Constitutional Tribunal of 20 March 2006 (K 17/05) and on its basis stated that school teachers and administrative employees are not persons performing public functions. Finally, he pointed out that in the face of the objection of natural persons regarding the consent to the voluntary disclosure of data, it was necessary to issue a refusal decision pursuant to Art. 5 sec. 2 u.d.i.p.

In his complaint against the Mayor's decision, the complainant alleged a violation of:

1) art. 11 in connection joke. 107 § 3 of the Act of June 14, 1960 - Code of Administrative Procedure (Journal of Laws of 2022, item 2000, as amended - hereinafter: K.p.a.)

to the extent that these provisions imply the obligation to exhaustively refer in the justification of the decision to all allegations raised in the appeal, by not applying them, consisting in omitting by the appellate authority most of the allegations raised by it in the appeal;

2) art. 19 sec. 2 of the International Covenant on Civil and Political Rights

to the extent that this provision provides for the right to free expression of opinion, including the freedom to seek, receive and disseminate any information and views, regardless of state borders, orally or in print,

in the form of a work of art or in any other way of its own choice, by not using it and conducting the proceedings in a way that makes it impossible to obtain the requested information, resulting in the limitation of the right to information,

and thus preventing a debate on the state of education in the commune;

3) art. 10 sec. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms

in so far as it follows from the Convention that everyone has the right to receive and impart information, without interference by public authorities and regardless of national frontiers, by withholding the information requested and authoritatively limiting the right to information, resulting in limiting the right to information and debate on the state of education in the commune;

4) art. 5 sec. 2 u.d.i.p. to the extent that it provides that the restriction of the right to public information due to the privacy of a natural person does not apply to persons performing public functions, due to the lack of its application consisting in the erroneous assumption that the persons to whom the information relates do not perform public functions.

The complainant applied for the annulment of both decisions issued in the case and the award of costs. In justification, he presented his position.

In response to the complaint, the authority moved to dismiss it. It upheld the position expressed in the contested decision.

The Voivodeship Administrative Court in Wrocław considered the following.

The complaint turned out to be justified.

In the case, it was necessary to decide whether the authority had rightly refused to provide the complainant with public information in the form of name tables with teachers' salaries attached to the control report and other attachments to the report. It is beyond dispute, however, that the addressee of the request is the entity obliged to provide public information pursuant to Art. 4 sec. 1 point 4 u.d.i.p.

The essence of the dispute boils down to whether there were grounds for limiting the right to provide the requested information with reference to Art. 5 sec. 2 of the u.d.i.p., which states that the right to public information is subject to limitation due to the privacy of a natural person or the secret of an entrepreneur, however, this limitation does not apply to information about persons performing public functions related to the performance of these functions, including the conditions of entrusting

and performing functions, and in the event that a natural person or entrepreneur waives their right. In the complainant's opinion, there were no grounds for such a restriction, as teachers are persons performing public functions

within the meaning of the above provision. On the other hand, the appellate body is of the opinion that teachers are not persons performing public functions, and therefore - due to the need to protect their privacy - the requested information should have been refused.

As to the nature of teachers' salaries (as public information) and the status of teachers (as persons performing public functions), the Court has already commented on this case in the judgment of July 8, 2022 (IV SAB/Wr 1002/21; available - as well as all the references below) judgments of administrative courts - in CBOSA). Court

the panel adjudicating in this case shares the entirety of the position expressed in the above-mentioned judgments and adopts them as his own. Theses and theorems included

in the justification of the judgment, as particularly accurate and exhaustive, the Court repeatedly cites below as its own.

For the resolution of the case, it is crucial to clarify whether the requested information falls within the scope of public information and whether the authority was obliged to make it available.

First of all, it should be pointed out that the concept of public information has a broad character and refers to all public matters, also when the message was not produced by public entities, but only refers to them. According to Art. 1 sec. 1 u.d.i.p., any information on public matters constitutes public information. The indicated definition is clarified in art. 6 sec. 1 u.d.i.p., which lists the types of matters to which the information may relate

about the nature of public information, doing so in an open manner, which is served by the phrase "in particular". Jurisprudence and doctrine adopt a broad understanding of the concept of "public information", which is derived not only from the content of the cited provisions, but - above all - from Art. 61 sec. 1 and 2 of the Constitution of the Republic of Poland.

This concept will therefore include all information generated by public authorities and persons discharging public functions, as well as other entities that perform public functions or manage public property, as well as information relating to the said authorities, persons and other entities, regardless of by whom they were produced. Thus, any message produced or referred to public authorities is considered public information, such as:

and created or related to other entities performing public functions

in the scope of their performance of public authority tasks and management of municipal property or property of the State Treasury.

According to Art. 6 sec. 1 point 5 lit. c) u.d.i.p., public information is subject to disclosure, in particular on the property of local government units and professional and economic self-governments and the property of legal persons of local government, as well as sickness funds. Therefore, there is no doubt that information relating to teachers' salaries constitutes public information subject to disclosure pursuant to the Act on Access to Public Information. Remuneration is a manifestation of the management of public funds,

that is, information on public property referred to in the above-mentioned provision. Information on the entitlement to public funds spent in this way is just another aspect of the same economic phenomenon, and therefore both sides of the same financial activity cannot be treated differently: spending public funds on remuneration and the entitlement of remuneration to the person receiving it (cf. judgment of the Supreme Administrative Court of January 5, 2016 ., I OSK 3087/14).

This assessment is not changed by Art. 5 sec. 2 u.d.i.p., limiting access to public information due to the limitations indicated therein.

In the context of the content of the provision of consideration requires whether teachers are persons performing public functions. This problem has already been discussed

in the jurisprudence of administrative courts. In particular, the judgment of the Provincial Administrative Court (hereinafter: the Provincial Administrative Court) in Gorzów of December 19, 2019 (II SAB/Go 193/19) should be mentioned, the theses of which have a significant reference to the case under consideration. The science of law is in favor of a broad understanding of the term "person performing a public function", emphasizing that the catalog from art. 115 § 13 of the Penal Code (hereinafter: PC) is only of a basic and non-exhaustive nature. It is also noted that a person performing a public function should be considered as anyone who performs a function in public authorities or in the structures of legal persons

and organizational units without legal personality, if only this function is related to the disposal of state or local government property or the management of matters related to the performance of their tasks by public authorities, as well as other entities that exercise this authority or manage communal property or property of the State Treasury. It does not matter on what legal basis a person performs a public function (cf.

I. Kamińska, M. Rozbicka-Ostrowska, Act on access to public information. Commentary, Warsaw 2012, p. 87; M. Bidziński in: M. Bidziński, M. Chmaj,

P. Szustakiewicz, Act on access to public information. Commentary, Warsaw 2010, pp. 73-74). Moreover, even natural persons who are not part of the state apparatus, under certain conditions, should be treated as persons discharging public functions (cf. E. Olejniczak-Szałowska, Right to public information and the right to privacy of persons discharging public functions in the light of jurisprudence, CASUS 2015, No. 3 (77), p. 17). This applies in the jurisprudence of the Supreme Administrative Court, e.g. to contractors concluding contracts with public entities (cf. the judgment of the Supreme Administrative Court of February 12

2015, I OSK 759/14), or persons applying for a place in the public service (cf. the judgment of the Supreme Administrative Court of 12 June 2014, I OSK 2488/13), because they remain

in a substantive, not formal, relationship with public authority.

Reference should also be made to the judgment of the Supreme Administrative Court of June 15, 2016 (I OSK 3217/14), in which it was indicated that the concept of "a person performing a public function" has an autonomous and broader meaning under the Act on Access to Public Information than in Art. 115 § 13 and § 19 of the Penal Code Used in Art. 5 sec. 2 u.d.i.p. The concept of "person performing a public function" includes any person who has an impact on shaping public affairs within the meaning of Art. 1 sec. 1 u.d.i.p., i.e. to the public sphere. Such an interpretation corresponds to the intentions of the authors of the Act (u.d.i.p.) and fully implements the constitutional directive resulting from Art. 61 sec. 1 of the Constitution of the Republic of Poland.

Therefore, the jurisprudence of administrative courts clearly favors a broad interpretation of the concept of a person performing a public function. It generally assumes that a public function is a function related to the powers and duties related to the performance of tasks of public importance (cf. judgment of the Supreme Administrative Court of March 27, 2018, I OSK 1526/16)).

In connection with the above, the jurisprudence uniformly assumes that such a task of public importance is the implementation of the constitutional right to education. Joke. 70 sec. 4 of the Constitution of the Republic of Poland, it follows that public authorities shall ensure universal and equal access to education for citizens, and accordingly

joke. 1 point 1 of the Act of 14 December 2016 - Education Law (Journal of Laws of 2021, item 1082, as amended - hereinafter: Education Law), the education system ensures the implementation of the right of every citizen of the Republic of Poland to education and the right of children and young people to upbringing and care appropriate to their age and development. The performance of these public tasks is carried out primarily through the work of teachers who, pursuant to Art. 63 sec. 1 of the Act of January 26, 1982, Teacher's Charter (Journal of Laws of 2021, item 1762, as amended), during or in connection with the performance of official duties - from the protection provided for public officials on the principles set out in the Penal Code. Hence, administrative courts consistently indicate that a teacher is a person performing a public function, and they refer to teachers of all levels of education, regardless of the fact that only some of them are required to submit asset declarations (cf.: judgment of the Supreme Administrative Court of April 19, 2011 , I OSK 125/11;

of April 9, 2015, I OSK 1108/14; of October 12, 2017, I OSK 537/17; judgments of the Provincial Administrative Court: in Kraków of February 16, 2016, II SA/Kr 1573/15; in Gliwice of June 7, 2016, IV SAB/Gl 62/16; in Wrocław of May 4, 2017, IV SA/Wr 20/17).

In the opinion of the Court, the assumption that a teacher is a person performing a public function is also supported by the fact that pursuant to Art. 69 sec. 1 of the Education Law,

in a school or institution employing at least 3 teachers, there is a pedagogical council, which is a collegial body of the school or institution in the scope of the implementation of its statutory tasks related to education, upbringing and care.

Pursuant to Art. 69 sec. 3 of the Education Law, the pedagogical council includes: the headmaster of the school or institution and all teachers employed in the school or institution and employees of other workplaces who act as practical vocational training instructors or conduct educational work with juvenile employees in collective accommodation facilities for whom teaching and education is the basic occupation.

Pursuant to Art. 70 sec. 1 of the Education Law, the competences of the pedagogical council include: 1) approving the work plans of the school or institution after the opinion of the school or institution council; 2) adopting resolutions

on the results of the classification and promotion of students; 3) adopting resolutions

on pedagogical experiments in a school or institution, after their projects have been reviewed by the school or institution council and the parents' council; 4) determining the organization of professional development for teachers of a school or institution; 5) adopting resolutions on removal from the list of students; 6) determining how to use the results of pedagogical supervision, including exercised over the school or institution by the pedagogical supervision authority, in order to improve the work of the school or institution.

Moreover, pursuant to Art. 70 sec. 2 of the Education Law, the teaching council gives its opinion in particular: 1) the organization of the work of the school or institution, including the weekly schedule of educational activities, and the organization of qualifying vocational courses, if the school or institution conducts such courses; 2) draft financial plan of the school or institution; 3) motions of the headmaster to award teachers with decorations and prizes

and other awards; 4) proposals of the director of the school or institution on the assignment of permanent jobs and classes to teachers as part of the basic salary and additionally paid teaching, educational and care activities.

In view of the above competences of the pedagogical council, whose teacher is

Even though he is a member by law, although he does not issue any decisions, the teacher undoubtedly has a significant impact on the sphere of public affairs in the education system. Thus, he does not only perform service activities that are not directly related to the substantive competences of the school, but only serve to implement these competences. This makes it possible to recognize a teacher as a person performing a public function within the meaning of Art. 5 sec. 2 u.d.i.p.

Therefore, it is necessary to consider whether the information on the remuneration of a person performing a public function, regardless of the fact that it also affects the person's privacy, is related to the performance of this public function. Certainly, there is no such relationship with some components of remuneration resulting from the employee's family or social status (cf. the judgment of the Supreme Administrative Court of February 18, 2015,

I OSK 695/14). However, such a relationship exists in relation to the basic salary of a person performing a public function, or the incentive allowance and

regarding the method of determining this remuneration. This remuneration is, after all, compensation for the performance of official duties by a person performing a public function. The performance of official duties constitutes the performance of a public function (cf. the judgment of the Supreme Administrative Court of 14 May 2014, I OSK 2561/13). At the same time, it is immaterial that the disclosure of such information will make it possible to identify teachers, because the privacy of these persons, pursuant to Art. 5 sec. 2 u.d.i.p., does not constitute a premise for refusing to disclose public information.

It needs to be emphasized that although the value related to the transparency of public life cannot lead to the complete cancellation and negation of protection related to the lives of private persons performing public functions, persons performing public functions must accept a wider range of interference in the sphere of their privacy when they take up their functions. than in the case of other persons (cf. the judgment of the Constitutional Tribunal of 20 March 2006, K 17/05).

To sum up, there is no doubt that the documents requested by the complainant - in so far as they relate to teachers - constitute public information, concern persons performing public functions and are related to

with the tasks and function performed by these persons, therefore access to them cannot be limited pursuant to Art. 5 sec. 2 u.d.i.p., due to the protection of privacy or the secret of the entrepreneur. Thus, they are subject to disclosure under the Act on Access to Public Information.

At the same time, it needs to be emphasized that while teachers are undoubtedly among persons performing public functions, such persons are not persons performing service functions in the school, such as secretary, cook or school administrative manager. above people do not fulfill public tasks.

In the case of these persons - in the event of such a need - access to public information may therefore be limited due to the protection of their privacy pursuant to art. 5 sec. 2 u.d.i.p. (cf. judgments of the Provincial Administrative Court: in Gliwice of February 5, 2014,

II SA/Gd 786/13; in Krakow of February 16, 2016, II SA/Kr 1573/15).

With regard to the other allegations of the complaint, the Court notes that the appellate body did not refer to all the allegations of the appeal, but this infringement did

- having regard to the undoubted facts of the case and the erroneous assumption by the authority that teachers are not persons performing public functions -

had no effect on the content of the contested decision.

In view of the statement that the requested documents are public information

and concern persons performing public functions, therefore there were no grounds for refusing to disclose public information in the above scope. When examining the case again, the administration body will be obliged to take into account the position of the Court.

Considering the above, the Court repealed both decisions issued in the case pursuant to Art. 145 § 1 point 1 lit. a) and Art. 135 of the Act of August 30, 2002 - Law

on proceedings before administrative courts (Journal of Laws of 2023, item 259, as amended). The Court decided on the costs pursuant to Art. 200 of this Act.