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Failure to provide information by the Czech Trade Inspection Authority

12. 01. 2010

In 2006 to 2009, the Defender performed two key inquiries into selected model cases of failure to provide information on inspections and administrative offences of entrepreneurs. Both involved administrative bodies falling within the competence of the Ministry of Industry and Trade.  It also followed from the inquiry that these cases were not unique, but rather systematic failure to provide this type of information. According to the Defender, there are no legal and substantive grounds for such an information embargo.

Specifically, one of the cases involved failure to provide information by the Czech Trade Inspection Authority on the inspection and fining of specific petrol stations and the other failure to provide information to a punished entrepreneur who demanded information from a trade licensing office (the Tábor Municipal Authority) on an inspection and the penalty, if any, imposed also on his competitor in an attempt to ascertain whether the authority had proceeded identically in both cases.

The provision of information is regulated by Act No. 106/1999 Coll., on free access to information, which expressly tasks the liable party, in Section 11 (3), with providing “information produced through its activities” in the fulfilment of tasks within inspection, supervision, oversight or similar activities. The content of inspection protocols created by the personnel of authorities in performing inspections, as well as information on fines, represents information produced directly through official activities and it should be provided at anyone’s request.

The provision of the aforementioned information is also not prevented by the confidentiality obligation of officials imposed by a number of laws. While confidentiality applies to individual workers rather than an administrative authority as a whole, the obligation to provide information is related to the authority as such. Should confidentiality apply to the entire authority, the constitutional right to information could not be exercised and the Act on Free Access to Information would entirely lack sense. Section 19 of the Act on Free Access to Information therefore expressly stipulates that the provision of information pursuant to the Act does not constitute a breach of the confidentiality obligation.

The provision of this information is also not precluded by the non-public nature of administrative proceedings, which is often erroneously interpreted too broadly in practice. No general principle of non-publicity is stipulated in the existing and previous Code of Administrative Procedure. Only oral negotiations are designated as non-public by law (in contrast to public court hearings). The Act on Free Access to Information also excludes the provision of information from ongoing proceedings. Thus, it is impossible to deduce a general and permanent non-public nature of information produced in "proceedings of a non-public nature” if the latter are interpreted in the aforementioned correct manner. The principle of non-publicity has no further effect after the administrative proceedings are closed. A contrary interpretation would again lead to complete depletion of the Act on Free Access to Information, since an overwhelming part of the exercise of state administration takes place within administrative proceedings. Administrative courts also rejected the attempts of a number of authorities not to provide information with a reference to the fact that only parties to the proceedings are allowed to inspect files. The provision of a required piece of information that is entirely specific does not constitute inspecting the file and the Code of Administrative Procedure does not exclude application of the Act on Free Access to Information (e.g. judgment of the Supreme Administrative Court 8 As 24/2005 of March 28, 2006).

Finally, contesting alleged conflict with personal data protection under the special law does not represent an argument in favour of denying information on entrepreneurs’ offences. Personal data protection is entirely out of the question with respect to legal entities operating a business. For natural persons, personal data is protected by law, but information on an offence related to the operation of a business cannot be considered to be personal data since it does not represent infringement of private and personal life. The Defender shares the aforementioned view with the Office for Personal Data Protection, relying, among other things, on the award of the Constitutional Court promulgated under No. 299/2004 Coll., according to which information on the business activities of natural persons is not protected under the Personal Data Protection Act.

The Ministry of Industry and Trade has lately defended the incorrect procedure of the trade licensing offices by referring to the alleged special nature of Section 60 of the Trade Licensing Act in relation to the general stipulation of free access to information. The Trade Register newly contains an overview of all fines imposed on an entrepreneur by different authorities. In contrast to the rest of the Register, the aforementioned overview is not published on the Internet and, thus, it is not part of a public list.  However, the Defender considers that only the database of fines as a whole is protected against disclosure rather than each individual piece of information contained in it. Complainants usually do not require an overview of fines imposed on another person; instead they are interested in a specific punishment of specific conduct. They are usually motivated by an attempt to compare equality of treatment by the authority after they are punished for an offence of the same type. No objections can be made against such a control of public administration.

However, the trade licensing authorities, the Czech Trade Inspection Authority and the body superior to them, i.e. the Ministry of Industry and Trade, insist on their negative standpoint with respect to rejected requests for information, thereby undermining the transparency of public administration. The Defender has already exploited the options for achieving remedy stipulated with respect to him by law, and he therefore submits the matter to the Chamber of Deputies.

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