The confidentiality of meetings of the National Broadcasting Council conflicts with the idea of transparency of the State. Lawyers: Application of provision of Rules cannot be the norm

Presserwis | October 24, 2022

The National Broadcasting Council kept its meeting confidential, explaining that “sensitive data” was discussed during the meeting. Experts agree that this conflicts with the idea of the transparent operation of state institutions. “Confidentiality of the meeting of the National Broadcasting Council fits in with the policy of destroying democracy in Poland by the people appointed by Law and Justice,” says Prof. Michał Romanowski of the University of Warsaw. The National Broadcasting Council points to the rules of procedure of the Council, while experts point to the Constitution of the Republic of Poland.

“The decision to make the meeting confidential was made on the basis of the Rules of Procedure of the National Broadcasting Council, which, by wording, the powers of the chairman in greater detail, allows for such a procedure,” tells Teresa Brykczyńska, the spokeswoman for the Council.

Then she explained that Maciej Świrski, Chairman of the Council, had decided to make the meeting of 19 October confidential pursuant to subpara. 5.5 of the Rules of Procedure. “The decision was made because of the sensitive details related to the regulation of the audiovisual market being discussed at the meeting,” says Brykczyńska. As she points out, she cannot even disclose the timetable for the meeting.

The Rules of Procedure of the National Broadcasting Council became effective on 18 July 2019. Paragraph 5 subpara. 5 refers to formal motions that may be put forward during the meeting. These are motions for “discontinuation, postponement or closing of a meeting”, “making the meeting or part thereof confidential”, “closing the discussion”, “voting without the discussion”, or “amending the agenda”.

The full text of the Rules of Procedure of the National Broadcasting Council adopted by Resolution of the National Broadcasting Council No 180/2019 of 18 July 2019 is available here.

However, lawyers point to provisions of the Constitution of the Republic of Poland. “The public nature of meetings of public authorities is guaranteed by Article 61 of the Constitution of the Republic of Poland. Article 61(1) of the Constitution explicitly states as follows: “The citizen has the right to obtain information about the activities of public authorities and persons who perform public functions (…),” says Prof. Michał Romanowski, whom we asked for an opinion.

He also adds: “In addition, Article 61(3) of the Constitution of the Republic of Poland provides that the right to the public nature may only be restricted to protect the freedoms and rights of other persons and economic entities as defined in the Acts of law and to protect public policy, security or an important economic interest of the State. Based on what I read, there was no reason to keep the meeting of the Council confidential because none of the reasons set out in Article 61(3) of the Constitution was invoked in the statement of the spokeswoman of the National Broadcasting Council. The Rules of Procedure of the National Broadcasting Council must be interpreted in accordance with art. 61(3) of the Constitution of the Republic of Poland, which does not permit meetings of the National Broadcasting Council to be made confidential on an arbitrary basis.

The full text of the Constitution of the Republic of Poland is available here.

Patryk Wachowiec, the legal analyst of the Civil Development Forum, agrees with such an interpretation: “State bodies should act in accordance with the principle of transparency, which is one of the fundamental elements of democratic control over the authorities. The limitation of the public nature should therefore be an exception, not a rule, and should be proportionate to the purpose it serves,” he replied.

Wachowiec also notes that the confidentiality was not properly justified to the public: “The press release from the Council does not specify which “sensitive data related to audiovisual market regulation” were the subject of the meeting, what interest – whether security or public order – was supposed to be protected by restricting the public nature of the meeting and whether that interest actually justified making the entire meeting confidential and not only part of it or a given item of the agenda. The mere conviction of the Chairman of the National Broadcasting Council or the majority of the members of the Council that it is necessary to make the meeting confidential should not be a decisive criterion, as this may lead to abuse and promote the climate of mistrust against that body and its decisions.”

Konrad Siemaszko of the Helsinki Foundation for Human Rights added: “Transparency of operations is one of the basic principles that should be followed by regulatory bodies such as the National Broadcasting Council. This requirement is explicitly provided for by the EU Audiovisual Directive and is also repeatedly highlighted in the acquis of the Council of Europe. The public nature of the Council meetings allows the public to verify whether the Council acts impartially. It was because of the public nature of the Council meetings that we were able to find out how the discussions on the renewal of the TVN24 license had taken place.

Professor Tadeusz Kowalski, a media expert and a professor at the University of Warsaw, elected to the Council by the Senate of the Republic of Poland, is the only member of the National Broadcasting Council who is not connected to the ruling party. He also does not understand the grounds for making the meeting confidential.

“There were no reasons to keep the meeting confidential. However, the majority decided not to make the meeting public. I believe that this is an effort to weaken the social control and transparency of the Council’s activities,” says Prof. Kowalski.

Jan Dworak, former Chairman of the National Broadcasting Council, when asked about this matter by us, has no doubts that, as a rule, the work of the Council should be public, and the Chairman of the Council should clearly explain the reason for making the meeting confidential.

He also adds: “I do not recall that we (he was the chairman from 2010 to 2016 – ed. note) kept any meetings confidential. All the meetings were public. However, the previous Council (headed by Witold Kołodziejski, ed. note) restricted the access of office management to Council meetings and to various documents, but minutes of the meetings were publicly available. At the moment, this obsession with secrecy and fear of public opinion is moving these borders even further. However, you cannot uphold confidentiality as a rule, as there are no grounds for doing so.

“It is all the more important since one of the tasks of the National Broadcasting Council is to ‘ensure the open (…) nature of radio and broadcasting. It is difficult to conclude that the Council can effectively achieve this goal when its meetings are confidential,” says Patryk Wachowiec.

Professor Romanowski concludes: “The fact that meetings of the National Broadcasting Council regarding audiovisual market regulation are made confidential is the cause for utmost concern. Law and Justice and United Poland would like to have society supported by the government. The current ruling party does not want to see itself in free media as in the mirror.”

The spokeswoman for the Council, Teresa Brykczyńska, has not replied to the question of whether future meetings of the National Broadcasting Council would also be made confidential.

The next meeting of the National Broadcasting Council is to take place in November, although the Council announced earlier that it would meet every Monday and Wednesday.

The six-year term of office of the current National Broadcasting Council started on 3 October. The Council consists of five members. Two members were appointed by the Sejm (Maciej Świrski and Agnieszka Glapiak) and by the President of the Republic of Poland (Hanna Karp and Marzena Paczuska-Tętnik), while one member was appointed by the Senate (Tadeusz Kowalski).