The National Broadcasting Council Refuses to Make Public Legal Opinions on License Renewal for TVN24

Presserwis | January 26,2023

The National Broadcasting Council refused to provide Presserwis with expert opinions commissioned in connection with TVN24’s license renewal procedure. Previously, the regulator declared that it would make such opinions available in full “in due time.” In the meantime, the composition of the National Broadcasting Council has changed.

Lawyer Krzysztof Izdebski, an expert of the Batory Foundation and Open Spending EU Coalition, cites the latest case law of the Supreme Administrative Court (of 6 December 2022), which states, among others, that opinions prepared for the purposes of proceedings ended with the issue of an official position of the body constitute public information.

It took 19 months for the National Broadcasting Council to renew TVN 24’s license. TVN submitted the relevant application in February 2020, while the National Broadcasting Council decided in September 2021, four days before the broadcasting right expired.

“The National Broadcasting Council ordered three independent opinions, which are being analyzed at the meetings of the National Broadcasting Council and are the basis for further work (…). The expert opinions are part of the documentation in the ongoing proceedings. We will make them available in full in due time,” Teresa Brykczyńska, the spokeswoman for the National Council, announced in mid-2021.

We exercised the procedure for access to public information to ask the National Broadcasting Council to share the expert opinions commissioned by the regulator.

For the first time, we asked the National Council for opinions at the end of May 2022. On 9 June 2022, the executive office director, Anna Szydłowska-Żurawska, acting by the authority of the then Chairman Witold Kołodziejski, told us that “at present, it is not possible to conduct a technical review of your application due to ongoing court proceedings.” The broadcaster lodged a complaint with the Voivodeship Administrative Court against the inaction of the Chairman of the National Broadcasting Council and the excessive duration of the procedure. In January 2023, the Supreme Administrative Court ruled that the Chairman of the National Council was inactive.

We asked the National Broadcasting Council for the second time to provide expert opinions in January 2023, following the decision by the Supreme Administrative Court.

We received a reply signed by Chairman Maciej Świrski, who has told us that legal opinions “have the status of an internal document and therefore the content and form do not constitute public information” within the meaning of the provisions of the Act on Access to Public Information.

The Chairman of the National Council refers, among others, to the case law of the Supreme Administrative Court that “in principle, internal documentation or a technical activity constitutes such an activity of an entity that does not constitute the medium of public information.”

The Chairman of the Council argues that “while internal documents serve the fulfillment of a public task, they do not determine the operating directions of the body.” According to the regulator, authors of legal opinions “do not undertake to perform the work assuming that it would become publicly available, and such an assumption made in the order placed for the work would determine completely different rates of performance of such a work, which the authority might not be able to afford given its budget.”

Maciej Świrski argues that the analysis carried out with legal opinions at the offices of the National Broadcasting Council is merely used “by the Chairman and members of the National Broadcasting Council to formulate their internal views.” “Meetings of the National Broadcasting Council are closed; therefore, retention of internal documents must not lead to the disclosure of how the final opinion, already expressed in the regulatory and open formula, is shaped,” reads the letter.

Lawyer Krzysztof Izdebski, an expert on the Batory Foundation and Open Spending EU Coalition, finds the explanations of the National Council hardly convincing. “They present decisions that are out of context and referred to other situations from many years ago,” he said.

Krzysztof Izdebski commented: “Expert or legal opinions ordered to fulfill public tasks, and the Council’s action in this matter is, after all, one of its basic tasks, constitute information about public matters concerning procedures ended with the issue of a decision or another ruling.

In a response obtained from the National Broadcasting Council, Chairman Maciej Świrski also argues that “by submitting to the National Broadcasting Council documentation on the license application, TVN SA reserved confidentiality of the data concerning the ownership structure, and the opinions requested by the journalist in his request concern this very issue.”

“If it is really about trade secrets, the parts of the opinion which contain such secrets should be redacted, and the Council should issue a negative decision,” says Krzysztof Izdebski.

In 2018, the Voivodeship Administrative Court in Warsaw ruled that the National Broadcasting Council was inactive by not providing the Gazeta Wyborcza journalist with an expert opinion on fining the broadcaster of TVN 24. In its explanatory memorandum, the court pointed out, among others, that “there is no doubt that the National Broadcasting Council is an entity obliged to share the information available to it that constitutes public information.”